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Argelia Queralt Jiménez, The Populist Drift of the Catalan Pro-independence Movement in:

Jörn Axel Kämmerer, Markus Kotzur, Jacques Ziller (Ed.)

Integration und Desintegration in Europa | Integration and Desintegration in Europe | Intégration et Désintégration en Europe, page 253 - 280

1. Edition 2019, ISBN print: 978-3-8487-6131-9, ISBN online: 978-3-7489-0222-5, https://doi.org/10.5771/9783748902225-253

Series: Societas Iuris Publici Europaei (SIPE), vol. 13

Bibliographic information
Integration und Fragmentierung Integration and Fragmentation Intégration et fragmentation The Populist Drift of the Catalan Pro-independence Movement Argelia Queralt Jiménez* Introduction In the following pages I would like to demonstrate how the pro-independence movement in Catalonia has undergone a “populist drift”, to use the expression of my colleagues Barrio, Rodríguez and Barberà.1 Since the restoration of democra‐ cy in Spain, the pro-independence movement and political parties have always been present. However, seven years ago their strategy changed substantially. Lately, as I will try to show in this article, the secessionist strategy has shifted to typically populist tactics and not as a mere local phenomenon, but as a reflection of a more global reaction to globalization and the impact of the economic crisis.2 Needless to say, on both sides of the political divide there are many elements to be analysed concerning Spanish and Catalan institutions, both from a legal and a political perspective. However, the following pages will deal mostly with the ele‐ ments that have configured the “process” to date. The reason for doing so is that the Catalan pro-independence groups have been offering a (false) idea of the movement’s purpose. It has constantly been repeated that the process is about democracy, but the facts show that it is about independence. And with this aim of Catalonian independence in mind, the leaders of the process have been using non-democratic or illiberal tools to try to convince not only the Catalan popula‐ tion, but above all the international community, that Spain was about to become a dictatorship and that Catalonia was merely trying to defend its rights and the rights of Catalans in the face of such policies. I will review the key arguments of what has been dubbed “processism” in or‐ der to unmask its lack of legal validity. Of course, there are other arguments and core points that could be analysed,3 but in order to restrict my explanations to the * The author is Professor of Constitutional Law at the University of Barcelona. The text was finalized in October 2018. 1 Barrio / Barberà / Rodríguez-Teruel, Spain steals from us! The ‘populist drift’ of Cata‐ lan regionalism, in: Comparative European Politics, 16 (2018), p. 993. 2 Ignacio Molina, La dimensión internacional y europea del procés, in: Anatomía del procés, 2018, p. 201 (p.203). 3 One of the most frequently used pro-independence arguments has been “Spain steals from us”. Actually, it has been a constant argument in the Catalan nationalist discourse since the very beginning of the democratic regime after 1978 and the establishment of the first Cata‐ lan Government presided over by J. Pujol. Vid. Joan Llorach, El relato del expolio, in: Anatomía del procés, 2018, p. 89 ff.. 255 legal elements, I have chosen to examine, first, the disinformation given on the democratic nature of Spain: it has been compared with some current illiberal sys‐ tems, while the democratic features of the Spanish constitutional system have been ignored. The movement has, secondly, based much of its discourse on the illegitimacy of the remanding in custody of some of the most prominent pro-in‐ dependence leaders: although this pre-trial imprisonment may well be considered disproportionate, it has a clear legal motivation – the breaking with the Constitu‐ tional legal order. Thirdly, I will address the myth of the single Catalan people, homogeneous and with a common demand: independence. And, finally, I shall examine the right to decide, a plebiscitary tool defined by the Catalan pro-inde‐ pendence leaders as the only way to achieve a democratic agreement on the fu‐ ture of Catalonia.4 The rupture with the constitutional legal order and the illegal referendum A little over a year ago, on 6th and 7th September 2017, the Catalan Parliament passed two laws: the law on the unilateral referendum on self-determination; and the transitory law (from the Spanish State to the new Catalan Republic), which sought Catalonia's institutional break from Spain. This rupture, already very seri‐ ous in a democratic context, was possible because the representatives of 50% of Catalans unilaterally gambled to impose their venture on the other 50% of the Catalan population. This was the juncture at which the Catalan governing institu‐ tions officially adopted unilateralism. There ensued several months in which there was an absolute abdication of the law by the Catalan authorities: nothing was considered to be binding, neither the Constitution, nor the Statute, nor the rights of parliamentarians, and, of course, none of the decisions of the Constitu‐ tional Court forbidding all these actions and warning of the (potential) conse‐ quences of disobeying them. Before that date, the Constitutional Court and the Central Government had warned the Catalan institutions several times that passing such laws would be in breach of the constitutional legal order. The 6th and 7th September have gone I. 4 I would like to introduce a disclaimer regarding the references that I have used to prepare this chapter. As the pro-independence movement is a current one, many of my references are blogpost analyses, written by well-known social scientists and lawyers. Academic pa‐ pers on this specific topic are still scarce. On the other hand, on some occasions, I will cite El Pais newspaper; this is because it is a general Spanish newspaper with an English ver‐ sion. Last but not least, many articles have been written on Catalan self-government and on the Spanish territorial system. I will not cite all of them, as this is not a work on the territor‐ ial model, but a work on the populist drift of the independence movement. I will cite some works in order to give some context on the state of knowledge of the issues dealt with. The Populist Drift of the Catalan Pro-independence Movement 256 down in Catalan history as two black days in our parliamentary and democratic life. At that moment, the Catalan Parliament contained a majority of pro-indepen‐ dence MPs5 who, notwithstanding, did not represent the majority of the Catalan population.6 Despite such a situation, the pro-independence parties decide to pass the laws and did so in breach of some of the fundamental rights of the opposition groups, as the Constitutional Court subsequently confirmed in its judgment 10/2018, 5th February 2018. Since then,7 we have witnessed a non-stop escalation of threatening bluffing from the unilateral pro-independence leaders – known as “procesistas”, as they are the leaders of the “process”. With the situation reaching the limit of what is legally admissible in a democratic state, the Central Government put its constitu‐ tional defence instruments on the table, although not always in the most appro‐ priate way.8 5 A brief guide to the political parties in the Catalan Parliament: CiU: Convergència i Unió (coalition: centre-right nationalist party); today PDECAt: Partit Demòcrata Europeu Català- Catalan European Democratic Party ERC: Esquerra Republicana de Catalunya-Republican Left of Catalonia (left-wing pro-in‐ dependence party) JxS: Junts pel Sí – Together for Yes: CiU + ERC (pro-independence party) PSC: Partit dels Socialistes de Catalunya- Catalan Socialist Party (social democrats, not pro-independence) Cs: Ciutadans-Citizens (liberal non-Catalan nationalist party) CSQEP: Catalunya Sí que es pot – Catalonia, Yes We Can (left-wing coalition; not pro-in‐ dependence) PP: Partit Popular-Popular Party (right-wing party; not pro-independence) CUP: Candidatura d'Unitat Popular-Popular Unity Candidacy (radical left-wing party; proindependence.) 6 The results of the elections of 2015 were as follow: - Together for Yes 1,628,714 votes, 39.59% of votes, 62 MPs - Ciutadans, 736,364 votes, 17.90% of votes, 25 MPs - Catalan Socialist Party 523,283 votes, 12.72% of votes, 16 MPs - Catalonia, Yes We Can 367,613 votes 8.94% of votes, 11 MPs - Popular Party 349,193 votes, 8.49% of votes, 11 MPs - CUP 337,794 votes, 8.21% of votes, 10 MPs These data can be consulted at https://www.parlament.cat/document/composicio/150360. pdf, last accessed 30 October 2018. 7 Several books have been published explaining what has happened in the past months. I would highlight Empantanados (2018) by Joan Coscubiela, a member of the Catalan Par‐ liament for Catalunya sí que es pot; Sandrine Morel, En el huracán catalán, 2018; the Le Monde press correspondent in Catalonia; Pau Luque, La secesión en los dominios del lobo, 2018; Lluís Bassets (Deputy Editor of El Pais), La rebelión interm inable, 2018; Lola García (Deputy Editor of La Vanguardia), El naufragio, 2018. 8 A critical view on the application of art. 155 SC to self-government in Catalonia can be read in Enoch Albertí, Cuestiones constitucionales en torno a la aplicación del artículo 155 CE en el conflicto de Cataluña, in: Revista d'estudis autonòmics i federals, 27 (2018), p. 1. Al‐ so, Leonardo Álvarez Álvarez, El poder de coerción del artículo 155 de la Constitución Española como función del Estado total. Consideraciones críticas sobre su reciente aplica‐ ción al desafío secesionista de Cataluña, in: federalismi.it, 10 (2018), p. 1. Argelia Queralt Jiménez 257 Following the Catalan Referendum Law, which was declared unconstitutional by the Constitutional Court, a “pseudo-referendum” was held on 1st October 2017. As the whole world was able to see on TV, there was massive participa‐ tion.9 On the other hand, the whole world witnessed the disproportionate and un‐ necessary police response (on the part of the force directed by the Spanish Min‐ istry of Home Affairs). The law had been declared unconstitutional, and the con‐ sultation did not fulfil any of the guarantees established, for instance, by the Venice Commission.10 Subsequently, and in a very original application of the laws themselves, first a Unilateral Declaration of Independence (UDI) with deferred effects, and then a UDI with symbolic effects were made. On 10th October, following what was laid down in the Referendum Law, President Puigdemont made a UDI in Parliament, but he immediately suspended it in order to seek dialogue with the Spanish Gov‐ ernment. The Government led by Mr. Mariano Rajoy asked Mr. Puigdemont whether he had declared independence or not. And after two weeks of some hesi‐ tation, Mr. Puigdemont, on 27th October, under great pressure from his followers, promoted the Unilateral Declaration that was passed by the Parliament as a “po‐ litical” statement. Despite this declaration’s merely political, even symbolic, na‐ ture, the pro-independence leaders pretended that it was in fact a real Declaration of Independence. It was what they made their followers, who were actually ex‐ pecting international recognition, believe. 45 minutes after this second UDI, the Spanish Senate gave its authorization to the Spanish Government to apply, for the first time in the country’s democratic history, Article 155 Spanish Constitution (SC), which foresees: 1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute ma‐ jority of the Senate, take the measures necessary in order to compel the lat‐ ter forcibly to meet said obligations, or in order to protect the above-men‐ tioned general interests. 9 Although there was not any official scrutiny, the Government of Catalonia issued the fol‐ lowing data: turnout 43%; 2,286,217 votes; 2,044,038 votes for yes and 177,547 votes for no. 10 “Guidelines on the holding of referendums” to be found at https://www.venice.coe.int/web forms/documents/default.aspx?pdffile=CDL-AD(2006)027rev-e, last accessed 30th October 2018. An analysis of the inexistence of this minimum standars in the “pseudo-re‐ ferendum” of the 1st October can be found in Josep Maria Castellà Andreu, Sobre el en‐ caje constitucional del pretendido referéndum de secesión en Cataluña, in: Eva Sáenz Royo / Carlos G Garrido López (coords.), La funcionalidad del referendum en la demo‐ cracia representative, 2017, p. 129 (p.145-152). The Populist Drift of the Catalan Pro-independence Movement 258 2. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Au‐ tonomous Communities. As a consequence, on Monday 30th October, the Spanish Government took over the Catalan Government’s powers of self-government, including the powers of the President of the Generalitat. This enabled President Rajoy to call Catalan elections on 21st December 2017. The unprecedented massive demonstration against independence that took place in Barcelona on 29th October should also be highlighted. The demonstra‐ tors defended their twofold identity: both Catalan and Spanish. For the very first time, thousands of Spanish flags were carried unashamedly through the streets of Barcelona. It has been said that such a reaction was not expected by the pro-inde‐ pendence leaders, as this sector of the population had long been silent. Actually, it was a clear indication of what would happen in the elections on 21st December. From that Monday 30th October onwards, we witnessed how some public au‐ thorities and figures were remanded in custody (in my opinion, a disproportion‐ ate measure). Furthermore, some of the leaders have been charged with rebellion and sedition, criminal charges that are very controversial.11 Other leaders fled justice and went to live as supposed exiles in Belgium, the United Kingdom or Switzerland. We have also witnessed a misuse of the European Arrest Warrant, both by the Spanish jurisdiction and by the Belgian and German jurisdictions. It is a European tool that undoubtedly needs to be reviewed if it is to be used in such complex matters as the Catalan question. Be that as it may, new elections were held on 21st December 2017. With a record turnout of 81%, a “non-Catalanist” party, Ciudananos, for the first time in Catalonia, won the largest number of seats in the Catalan Parliament. In contrast, the two parties that clearly favour dialogue and bridge-building (PSC and Catalunya sí que es pot) lost support. In terms of votes on the pro-independence side, Mr. Puigdemont, the leader who fled, beat Mr. Junqueras, the leader who accepted his responsibilities and was remanded in custody. 11 An English explanation of the doubts on the existence of rebellion can be found in Jordi Nieva, High Treason in Germany – Rebellion in Spain, in: Verfassungsblog, 26 March 2018, https://verfassungsblog.de/high-treason-in-germany-rebellion-in-spain/, last accessed 30th October 2018. Argelia Queralt Jiménez 259 Results of 2017 elections Political Party Seats Votes Cs 36 1,109,732 25.35 % JxC 34 948,233 21.66 % ERC 32 935,861 21.38 % PSC 17 606,659 13.86 % CatComú-Podem 8 326,360 7.46 % CUP 4 195,246 4.46 % PP 4 185,670 4.24 % The open nature of the Spanish territorial organization system Catalonia is an Autonomous Community with almost eight million inhabitants with a highly developed level of political autonomy, and it has boosted the devel‐ opment of the whole autonomous system.12 It is also true that it has sometimes been undervalued by the “State”, and it is certainly true that Catalan self-govern‐ ment could go further.13 However, this does not justify the unilateral rupture of the Spanish system. First of all, the open nature of the territorial organization of power foreseen in the Constitution of 1978 must be emphasized. This means that the Spanish Con‐ stitution does not have a fixed, well-established system of decentralization. The drafters of the Constitution took a decision that involved establishing the bases for the political decentralization of three specific territories (Catalonia, the Basque Country and Galicia). These were the regions that had sought autonomy in the past. There was no clear idea as regards what should happen to the remain‐ ing regions in Spain. As has just been pointed out, the Constitution established rules and procedures to be followed in order to achieve autonomy, but from that point on, the Constitution was open. Actually, for the past 30 years it has been taught in classrooms that both the Constitution and the case law of the Spanish Constitutional Court (SCC) recognize a specific constitutional role of the Au‐ tonomous Statutes: to develop and to close the open constitutional system. Due II. 12 Sandra Leon, ¿Cuánto autogobierno tiene Cataluña?, in: eldiario.es, https://www.eldiario .es/piedrasdepapel/, last accessed 30 October 2018. 13 There are many articles on that issue – for example: Paloma Biglino, Cataluña, federalis‐ mo y pluralismo político, in: Teoría y Realidad Constitucional, 37 (2016), p. 449-459; An‐ tonio Arroyo Gil, Cataluña en el estado autonómico: derecho y política”, in: El cronista del estado social y democrático de derecho, 70 (2017), p. 10. The Populist Drift of the Catalan Pro-independence Movement 260 to their specific constitutional relevance, these Statutes were considered to be special laws, just beneath the level of the Constitution. Subsequently, there were two main political agreements, one in 1981 and the other in 1992, which were responsible for the specific development of our sys‐ tem and the scope of its constitutional provisions. And the system worked very well indeed. It is quite obvious, though, that a system defined and written down immediately after 40 years of dictatorship needs to be adapted to new institution‐ al, political and regional developments and needs. For more than 10 years now, every Region has possessed the highest level of autonomy allowed by the Constitution. However, there are still key elements of the system that need to be readjusted, not because of Catalonia, but in order to guarantee the survival of the whole system. The decision by the Spanish Constitutional Court in 2010 on the Catalan Statute of Autonomy The “Catalan question” is an old one, but in recent years it has re-emerged with great force. Most probably, the turning point is to be found in a decision by the SCC in 201014 on the Statute of Autonomy of Catalonia passed in 2006. This Statute, by constitutional mandate, is an agreed law. In fact, any reform of the 1979 Statute of Catalonia required three different and consecutive conditions to legitimize the modification: a majority of (at least) two thirds of the Parliament of Catalonia; the support of (at least) an absolute majority of the Spanish Congress and (at least) a majority of the Senate; and, finally, a positive result in a referendum in Catalonia. For this reason, the constitutionalist doctrine had al‐ ways described the Statute of Autonomy as an agreed norm in which the concur‐ rence of two wishes, that of the autonomous community and that of the State, must concur. In this particular case, after the official publication of the new Cata‐ lan Statute, the Partido Popular filed an appeal before the Constitutional Court against it. In its judgment, the SCC not only overruled some articles of the new Statute, but also changed the very understanding of the role of the Statute, a source of law within the Spanish legal system. Against its own precedents, the Constitutional Court seemed to reject the constitutional role of the Statutes in de‐ veloping the open territorial organization system established by our Fundamental Law.15 III. 14 In Spanish: https://boe.es/boe/dias/2010/07/16/pdfs/BOE-A-2010-11409.pdf, last accessed 30th October 2018. 15 Hundreds of papers have been written on Judgment SCC 31/2010. A good, and critical, review of it can be found in Mercé Barceló, Xavier Bernádí, Joan Vintró, Especial Sentència 31/2010 del Tribunal Constitucional, sobre l’Estatut d’autonomia de Catalunya Argelia Queralt Jiménez 261 In order to achieve the full picture of the situation, two important elements must be stressed. On the one hand, the Partido Popular Popular Party had been carrying out an “anti-Catalan” campaign. It reached its peak in 2006: Mr. Rajoy promoted a signature-collection campaign against the Statute of Autonomy while it was being debated in the Spanish Parliament. The PP gave great prominence to it so everyone in Spain could see how citizens were signing against a new in‐ stitutional law for Catalonia. On the other hand, it must be said that the Statute was not a priority for Catalan citizens. In fact, it was included in the agenda by the Socialist President Pasqual Maragall. And, if I might say so, it turned into a nightmare for the leading party in the Government, the socialists: negotiations with Esquerra became a frustrating task. In the end, the Statute was passed by the Catalan Parliament without the agreement of the Catalan Partido Popular (15 votes out of 135). All the same, on the afternoon of 10th July 2010, the streets of Barcelona were filled with protesters outraged by the ruling of the Constitutional Court on the Statute of Autonomy of Catalonia (JSCC 31/2010). This ruling was understood as an act of contempt against the will of the Catalan people as expressed by their Parliament and a referendum. The demonstration, under the slogan "We are a na‐ tion. We decide" and headed by the President of the Generalitat, J.A. Montilla of the Catalan Socialist Party and the President of Parliament, E. Benach from ERC, began as a popular protest against a judgment of the SCC, but ended up becom‐ ing, for much of its route, a call for independence. This was, without doubt, the starting point in the race towards independence, prominently starring Con‐ vergència i Unió and Esquerra Republicana de Catalunya. Both sides of the process On the Catalan side… The predominant underlying cause of the “process” has been assumed to be the SCC Judgment 31/2010: it was the turning point at which part of the Catalanist IV. IV.1. de 2006, in: Revista Catalana de Dret Públic, 2010. Specifically, on the “agreed” nature of the Statute, the works of E. Álbertí et al., http://revistes.eapc.gencat.cat/index.php/rcdp/is sue/view/23, last accessed 30th October 2010. Also, Enoch Álbertí, La reforma constitu‐ cional y el futuro del Estado autonómico. En especial, el problema constitucional plantea‐ do en Cataluña, in: José Tudela Aranda / Carlos Garrido López (ed.), La organización territorial del Estado, hoy, 2016, p. 243 (p.250). It is worth reading the effects that the judgment of the SCC had (or could have had) on the whole autonomous system, see Enoch Álbertí, El Estado de las Autonomías después de la Sentencia del Tribunal Constitucional sobre el Estatuto de Cataluña, in El Cronista del Estado Social y Democrático de Derecho, 15 (2010), p. 90 (p. 94-97). The Populist Drift of the Catalan Pro-independence Movement 262 movement opted for independence as a political goal, leaving aside more nu‐ anced positions. However, there are works and analyses that call into question whether the on‐ ly cause of the growth of the pro-independence movement was the SCC Judg‐ ment 31/2010.16 In fact, data show that the economic crisis was also a factor that fed the roots of the movement. In a comparison of the attitudes of Catalans and the inhabitants of the rest of Spain towards different elements and, in particular, respect for the system of autonomy, Eloisa del Pino17 shows that disaffection with this arrangement was growing noticeably in Catalonia and the remaining Autonomous Communities as of 2010. It is evident that the ruling against the Statute led to a decline in confidence in the autonomous system on the part of Catalans, but it is also necessary to include the economic crisis as a growth factor in disaffection. In addition, closely linked to the economic crisis, from 2012 specifically in Catalonia, two more elements need to be introduced: the consoli‐ dation of the idea that the financing system was unfair to Catalonia, and the attri‐ bution of the blame for the austerity measures applied by the Government to the central administration. The sum of all these elements, some only affecting Catalans and others whose impact was shared by the rest of the Autonomous Communities, offered the per‐ fect setting for CiU and ERC to intensify their particular struggle for power in Catalonia. Joan RODRÍGUEZ and Astrid BARRIO have presented empirical da‐ ta on the power struggle in which CiU and ERC have been immersed for years, and which has led to the radicalization of CiU’s discourse from nationalism to positions close to independence.18 This is shown by the commitment to what was called “the right to decide”, with the holding of a popular consultation in 2014 (9N)19 and, as a consequence of the adoption of certain decisions, the commit‐ ment to independence: starting in 2012, the Government of President Mas pro‐ 16 Jordi Amat, La confabulació dels irresponsables, 2017, aims to take apart this stereotyped interpretation that the judgment against the Catalan Statute caused the change described, 2017; Astrid Barrio, La rivalidad soberanista: los postores de la subasta catalana, in: Coli / Molina / Arias (eds.), Anatomia del procés, 2019, p. 139 (p. 141-142). 17 Eloisa Del Pino, Estaban un catalán, una madrileña y un andaluz y…llegó una terrible y sombría crisis, in: Agenda Pública, 10 November 2017, http://agendapublica.elperiodico.c om/estaban-catalan-una-madrilena-andaluz-yllego-una-terrible-sombria-crisis/, last accessed 30th October 2018. 18 These authors describe that struggle of power as a result of CiU and ERC outbidding each other. Astrid Barrio / Juan Rodríguez-Teruel, Reducing the gap between leaders and voters? Elite polarization, outbidding competition, and the rise of secessionism in Catalo‐ nia, in: Ethnic and Racial Studies, 40 (2017), p. 1776. 19 On 9th November 2014 a participatory process on the political future of Catalonia was held in Catalonia. It should have been a referendum on the self-determination of the Region, but the Constitutional Court banned it due to the lack of competence of the Catalan Govern‐ ment to call it. In the end, President Mas decided that it would be unofficial and would be held with the implication of civil society. Notwithstanding, President Mas and two of his Argelia Queralt Jiménez 263 moted the construction of “state structures”, with the creation of the Advisory Council for the National Transition.20 In 2015 new elections were held in Catalonia with a different political strate‐ gy: CiU and ERC, with some independents, agreed on a joint list, Together for Yes. The unitary list, however, harvested 62 seats in Parliament, that is to say on‐ ly one more than the sum of the seats previously held by CiU and ERC. There‐ fore, they did not have an absolute majority and had to pay a high price by seek‐ ing the support of CUP: President Mas had to stand down and Carles Puigde‐ mont took office as the new President of Catalonia. This was, in my view, the true departure from the previous path towards inde‐ pendence and, therefore, the moment at which unilaterality was introduced on the Catalan horizon as a plausible tool to achieve independence. Seen in perspec‐ tive, independence became the real objective, and the holding of a referendum agreed with the state a manoeuvre of distraction. In order to comply with a mini‐ mum appearance of their intention to implement dialogue, the National Agree‐ ment on the Right to Decide was created with an extremely short life and with two exit conditions: 1) President Puigdemont had promised to hold the referen‐ dum with or without a pact with the Spanish Government; 2) a date was pre-es‐ tablished – it should be held in the autumn of 2017. These two features meant that even those who had defended the possibility of an agreed referendum as a possible instrument for solving the political conflict in Catalonia lost all hope of success. On the Spanish side… All this occurred against the background of a Government led by Mr. Rajoy, who refused to engage in politics with respect to Catalonia. There are different rea‐ sons for this attitude, but two of them may be highlighted: one ideological and one pragmatic. First, Mr. Rajoy exhibited a conscious approach to government and an ideology that involved avoiding negotiations or offering any concessions to Catalan sovereignty. This option, which is legitimate, is based in turn on an IV.2. Ministers were convicted for an offence of disobedience and barred from holding public office for two years. Complete information can be found at https://elpais.com/elpais/2017/ 03/14/inenglish/1489485949_289187.html, last accessed 30th October 2018. The questions in this unofficial consultation were: 1) “Do you want Catalonia to be a state?”; in the case of a positive response, 2) “Do you want Catalonia to be an independent state?”. 20 Created by the Catalan Government by decree 113/2013, 12th February 2013 (DOGC 14th February 2013). A synthesis of their conclusions can be found at: http://economia.gencat.c at/web/.content/70_economia_catalana/Subinici/Llistes/nou-estat/catalonia-new-state-euro pe/national-transition-catalonia.pdf, last accessed 30th October 2018. The Populist Drift of the Catalan Pro-independence Movement 264 absolutely restrictive and inflexible interpretation of our legal system and the Constitution, making it a kind of sacred, immutable text carved in stone. Mr. Ra‐ joy constantly reiterated that "it is not that I do not want to, it is that I cannot". However, he was not telling the truth because, as a certain proportion of constitu‐ tionalist doctrinal experts have submitted, the Spanish Constitution still has a margin of manoeuvre that would extend to holding a referendum in Catalonia that was agreed, legal, but not binding. While in Catalonia the institutions re‐ mained outside the legally established margins, the Spanish Government neither attempted a real approach, nor offered any alternative to Catalans. On the con‐ trary, the strategy of the Premier was, first of all, to use the Constitutional Court as a shield against the excesses of the pro-independence institutions. As a conse‐ quence, and as an overreaction of the SCC, the Constitutional Court agreed for the first time to examine the constitutionality of Parliamentary resolutions, con‐ trary to what had been its practice until Judgment 42/2014.21 In fact, in the opin‐ ion of some scholars the SCC had been gaining more and more prominence, a role that was both excessive and inappropriate, in the Catalan conflict.22 Sec‐ ondly, the Government of the State decided to take everything related to the “process” to court. Thus, it began with the organization of the 9N vote23 and 21 E. Roig Molés offers a detailed explanation of the attitude of the SCC towards the Catalan crisis: “The Catalan sovereignty process and the Spanish constitutional court, 2017. An analysis of reciprocal impacts”; E. Roig Molés in: Revista Catalana de Dret Públic, 54 (2017), p. 24. A concrete analysis of Judgment 42/2014, with many bibliographical refe‐ rences, can be read in X. E. Arbós Marín, El Tribunal Constitucional como facilitador: el caso de la STC 42/2014, in: La última jurisprudencia relativa al Parlamento, 2016, p. 22; Josep Maria Castellà Andreu, Tribunal constitucional y proceso secesionista catalán: re‐ spuestas jurídico-constitucionales a un conflicto político-constitucional, in: Teoria y Reali‐ dad Constitucional, 37 (2016), p. 561. 22 Ignacio Villaverde Menéndez, Cumplir o ejecutar. La ejecución de sentencias del Tribu‐ nal Constitucional y su reciente reforma, in: Teoría y Realidad Constitucional, 38 (2016), p. 643. It must be pointed out that the SCC’s powers of execution powers of its own judg‐ ments were declared constitutional by the SCC: Judgments 185/2016, 3 November, and 215/2016, 15 December. A critical comment, in English, can be found in Eduard Roig Molés, Seven questions and one conclusion regarding the judgment of the Constitutional Court on the enforcement of its resolutions on these judgments, in: Blog Nova Icaria, Insti‐ tut de Dret Públic, http://idpbarcelona.net/docs/blog/court.pdf, last accessed 30 October 2018. Quite critical is also Joan Ridao, Las nuevas facultades ejecutivas del Tribunal Con‐ stitucional como sustitutivo funcional de los mecanismos de coerción estatal del artículo 155 de la Constitución; Joan Ridao in: Revista Vasca de Administración Pública, 106 (2016), p. 151. A collective publication on this topic has recently appeared: La ejecución de las resoluciones del Tribunal Constitucional: XXIII Jornadas de la Asociación de Le‐ trados del Tribunal Constitucional, 2018. 23 The 9N is the given name to a previous non-official (and non-agreed) popular consultation that took place in 2014. For the moment, this has led to the conviction of former President Mas and three Catalan Ministers for disobedience and a judgment of the Spanish audit court against President Mas and several members of his government, who have been held accountable for the public funds that were used to hold the 9N, they have to pay back 4.9 million euros. Argelia Queralt Jiménez 265 subsequently continued with the criminal proceedings against Jordi Sánchez, the president of the National Catalan Assembly24, and Jordi Cuixart, the president of Omnium Cultural, criminal proceedings against the members of the Bureau of the Parliament, as well as against the members of Puigdemont’s Government and other public officials involved in the preparation and celebration of the “referen‐ dum” on 1st October 2017. Beyond the ideological option, there is a second important element that condi‐ tioned the reactions of President Rajoy’s Government: Ciudadanos (Cs) ap‐ peared in the polls as a real alternative to the Partido Popular. This estimated increase in potential voters for Ciudadanos was due, to a great extent, to their position with regard to Catalonia. Cs has adopted a very hard-line attitude, re‐ jecting dialogue with “the perpetrators of a coup d’état”, as they refer to the proindependence leaders. Moreover, Cs made use of a very Spanish nationalist dis‐ course – and still does so. It is also worth remembering that this tension and this polarization gave them very favourable results in the 21D elections, contrary to what happened to the PP, which achieved the worst results in its history in Cat‐ alonia. Finally, the Government of the State decided to apply Article 155 SC, a con‐ stitutional safeguard clause which had hitherto not been resorted to. Analysis of its application and its specific scope have scarcely been undertaken yet. What is clear is that its implementation implied a tipping point in institutional, political and social relations between Spain and Catalonia.25 The current situation For six years the secessionist civil movement and Catalan government institu‐ tions have focused on the development of a pro-independence atmosphere and on the creation of an illusion (I’m afraid to say) of an independent Catalonia. Every effort has been devoted to persuading Catalan society that Spain was the origin of all its problems and that an independent Catalan State was legally possible outside Spain and within the European Union legal order. These two claims are, incidentally, false. Nevertheless, the secessionists initially defended the idea that the Catalans deserved a referendum to ask whether they wished to continue to remain in or leave Spain. However, after Mr. Rajoy’s Government’s total rejec‐ IV.3. 24 National Catalan Assembly and Omnium Cultural are two civic groups that have been es‐ sential in promoting collective action in favour of the pro-independence cause since the rise of the movement in the early 2010 s. Their Presidents, Jordi Sánchez and Jordi Cuixart, are in pre-trial detention for rebellion. 25 The decision on the implementation of art. 155 SC was challenged before the Constitution‐ al Court; however, the Constitutional Court has not issued a decision on it yet. The Populist Drift of the Catalan Pro-independence Movement 266 tion of such a possibility (holding a referendum), President Puigdemont promised independence no matter what. So, the conflict between the Institutions of the State and the Institutions of Catalonia was irretrievably opened. And what is even worse, escalation of the conflict has not ceased since then. Both a constitutional and a European crisis A “populist drift” In their work Barrio, Barberà and Rodrígues-Teruel depart from the defini‐ tion of “populism” given by Cas Mudde in 200426: “an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people”. They go on to connect the core elements derived from Cas MUDDE’s definition with the key elements of Catalan regionalism. The conclusion they reach is that the pro-independence leaders, both political parties and social movements (the National Assembly of Catalonia and Omnium Cultural) have been using key rhetorical arguments clearly identifiable as populist.27 As the three above-mentioned Spanish professors explain, populism is based on an antagonistic division of society, on the existence of two homogeneous groups, the people and the elite. If we adopt it in the case of the discourse of the Catalan secessionist movement, that antagonism has been applied to the division between the “good Catalans” – the people of Catalonia – and the evil Spanish institutions. This is also the basis of Takis S. Pappas, who states modern pop‐ ulism and democratic illiberalism to be the same.28 In fact, Pappas, “stripping to its essentials” the concept of populism, says that it “could be defined as the idea that political sovereignty belongs to and should be exercised by ‘the people’”. This conceptualization “entails four essential attributes of ‘the people’”, which, as I will try to show, are present in the pro-independence movement in Catalonia: “a) its potential to form a political majority; b) its allegedly homogeneous “over- V. V.1. 26 C. Mudde, The populist zeitgeist, in: Government and Opposition, 39 (2004), p. 541. 27 Barrio / Barberà / Rodrígues-Teruel, Spain steals from us!’ The ‘populist drift’ of Catalan regionalism, in: Comparative European Politics, 16 (2018), p. 993 (p.999). 28 Takis S. Pappas, Modern Populism: Research Advances, Conceptual and Methodological Pitfalls, and the Minimal Definition, in: Oxford Research Encyclopedia of Politics, 2016, p. 1 (p.18), http://politics.oxfordre.com/view/10.1093/acrefore/9780190228637.001.0001/a crefore-9780190228637-e-17, last accessed 30 October 2018. Argelia Queralt Jiménez 267 soul” nature; c) its embattled social positioning in an ostensibly bipolar world; c) and its belief of holding the moral right”.29 So, there is no need for liberal checks and balances, or for the intermediation of political parties and representatives. Consequently, populism demands plebisc‐ itary forms of democracy and direct links between the people and their leaders,30 rejecting the basic rules of pluralism, protection of minorities, and political coun‐ terweights – key features of modern democracies. And, as a last element, I would also add the systematic use of methods of disinformation. As I have already mentioned, my conclusion is that the pro-independence leaders have used such a political framework to develop their strategy, above all in the most recent stages of the “process”. The leaders of the “process” have abused and manipulated some corner-stone concepts of the liberal system: a) democracy vs. rule of law; b) the concept of “we, the people”; c) the representa‐ tive system; d) the right of self-determination; e) the scope of human rights; f) the appropriation of public institutions and the appropriation of public space. In order to limit my explanation I will focus on, firstly, the disinformation concern‐ ing the democratic nature of Spain, in which comparisons were drawn with some present-day illiberal systems, while at the same time relegating the clearly demo‐ cratic aspects of the Spanish constitutional system to the background. Second, much of their discourse relies on the idea that the remanding in custody of the leading pro-independence figures is illegitimate: even though this step may be seen as excessive, there is a clear legal reason, namely their rupture with the Constitutional legal order. In the third place, the myth of a sole Catalan people, homogeneous and with a common goal: independence. And, last but not least, the right to decide, a plebiscitary instrument as the only possible way to reach a democratic accord on the future of Catalonia, as laid down by the pro-indepen‐ dence leaders. This is not the moment to introduce a far-reaching discussion on the roots and bases of the liberal democratic system. But simply as a starting point, we could agree that the basis of this model lies in the shift in the origin of sovereignty: it does not lie in God any more (nor in monarchs, who legitimize their power by their divine origin), but it resides in the people. From that moment, every person, every citizen will be responsible for his or her destiny. In exercising their power, 29 Takis S. Pappas, who states that “a truly minimal definition that understands contemporary populism simply as democratic illiberalism”, in: Modern Populism: Research Advances, Conceptual and Methodological Pitfalls, and the Minimal Definition”, in: Oxford Research Encyclopedia of Politics, 2016, p. 1 (p. 18) http://politics.oxfordre.com/view/10.1093/acref ore/9780190228637.001.0001/acrefore-9780190228637-e-17, last accessed 30 October 2018. 30 Barrio / Barberà / Rodrígues-Teruel, Spain steals from us!’ The ‘populist drift’ of Catalan regionalism, in: Comparative European Politics, 16 (2018), p. 995. The Populist Drift of the Catalan Pro-independence Movement 268 the sovereign people decide to provide themselves with a new model for allocat‐ ing, distributing and exercising public power. In order to avoid and control abus‐ es of power, public power will be divided into three different branches: Legis‐ lative Power, Executive Power and Judicial Power. Furthermore, the division of powers will be reinforced by a system of checks and balances. At the same time, despite having ceded sovereign power to the “state”, every citizen is entitled to a whole set of rights and freedoms that determine a space free from any interfer‐ ence from public power not previously foreseen by the law. This new model de‐ mands the equality before the law of all citizens of the same society, breaking, thus, with the previous division of legal norms depending on the social estate or class to which she or he belonged. In this sense, the rule of law implies, at least from a theoretical perspective, that every member of a particular state is treated equally before the law. Everyone, including public powers and the king, is sub‐ ject to the law. The relevance of this legal submission rests on the fact that law is the juridical expression of the popular will as represented in parliaments. Thus, the government and the public administration must also respect the law. Control of the law is guaranteed by an independent judicial power. So, the constitution, in the liberal sense of the term, is born with the French and American revolutions as the living-together founding agreement of a society. The constitution enshrines the legal-political expression of the new political sys‐ tem: the rule of law. Over the years, societies became more democratic, and constitutions gradually incorporated rights to political participation in the broad sense in their cata‐ logues. Hence the right to vote and to be voted for, but also the freedom of the press (nowadays the freedom of information), the freedom of expression, the right to found political parties as we know them today, the rights of assembly and demonstration, etc. came to be recognized. The SC of 1978 follows such a liberal European constitutional tradition. Spain is described as a social and democratic State based on the rule of law. The Con‐ stitution, consequently, contains all the elements required to be considered such a kind of state. Spain: an imperfect democracy, as all of them are Without sweeping aside the Partido Popular Government’s share of responsibili‐ ty for the crisis in Catalonia, the truth is that at a certain moment, the Catalan institutions chose, as described above, the path of unilaterality, arguing the lack of state response. At this juncture, the activity of the pro-independence move‐ ment lost its validity in constitutional terms. Moreover, it has been confirmed by V.2. Argelia Queralt Jiménez 269 prominent European leaders and the instances of the European Union: Spain is a democratic state of law and, therefore, there is no legal, domestic, European or international obligation that imposes a mandate for the Spanish institutions to hold a referendum in Catalonia. The Catalans are not an oppressed people whose rights are denied; there are no situations of inequality with regard to Spaniards from other parts of the state and, of course, there is no state violence. These would be some of the requirements that international institutions would consider to compel a referendum – but Spain and Catalonia are far from this situation. It is very important to remember that, notwithstanding the Catalan Govern‐ ment’s grievance, Spain is indeed a democratic State; it is imperfect, of course, and with problems, some of which are undoubtedly serious, but it is globally ac‐ cepted as a full liberal democracy. This is shown by different international rank‐ ings on democracy.31 In the field of human rights the ratio of pending claims per inhabitant before the European Court of Human Rights in 2017 was similar to that of Belgium, France or Denmark, with 0.14, compared to Italy (0.23), Greece (0.31) or Turkey (3.25).32 As I said, Spain has problems with some of the cardinal elements of a modern democratic state. Thus, there are several excesses which our courts perpetrate in relation to the freedom of expression, including here the Constitutional Court. The European Court of Human Rights (ECtHR), for instance, has condemned Spain three times due to the excessively restricted standards of freedom of ex‐ pression, supported by legislation that has been regressive in this area33 (the re‐ cent Law on public safety is a good example34). On the other hand, this does not mean that the Spanish judicial system systematically and structurally violates the right to freedom of expression. Proof of this is the number of messages that ap‐ pear in our social networks without anything happening. The excesses of some 31 An explanation of these indexes on Spain can be found in Pau Marí-Klose, La democra‐ cia española en perspectiva comparada, in: Agenda Pública, http://agendapublica.elperiodi co.com/la-democracia-espanola-perspectiva-comparada/, last accessed 30 October 2018. 32 European Court of Human Rights, Analysis of statistics 2017, https://www.echr.coe.int/Do cuments/Stats_analysis_2017_ENG.pdf, last accessed 30th October, 2018. I had the opportunity to explain these data regarding Spain in: ‘President’, España aprueba los estándares europeos de derechos humanos, in: Agenda Pública, http://agendapublica.elperi odico.com/president-espana-aprueba-los-estandares-europeos-derechos-humanos/, last accessed 30 October 2018. 33 Miguel A. Presono Linera, Quemar fotos del rey es libertad de expresión, in: Agenda Pública, http://agendapublica.elperiodico.com/quemar-fotos-del-rey-libertad-expresion/, last accessed 30th October 2018. 34 Miguel A. Presono Linera, Spain’s Public Safety Bill as “Administrative Law of the Ene‐ my”, in: Agenda Publica, https://verfassungsblog.de/spains-public-safety-bill-administrati ve-law-enemy/, last accessed 30th October 2018. The Populist Drift of the Catalan Pro-independence Movement 270 (very few) courts do not represent the majority. And, after all, a full system of judicial guarantees (including the ECtHR) is available to every Spanish citizen. There are no political prisoners, but politicians on remand. First of all, in Spain there are no political prisoners. The pro-independence lead‐ ers and their followers have promoted the idea that the politicians remanded in custody should not be there, because they limited themselves to defending their ideas peacefully and that, therefore, they cannot be charged with any criminal of‐ fences. This assertion poses a question regarding the very conception of the democratic rule of law. In the eyes of the “process” leaders, breaking the legal constitutional order on 6th and 7th September 2017 with the approval of the refer‐ endum and transitional laws, the holding of the referendum and the Unilateral Declaration of Independence do not deserve any legal reproach because these acts were carried out through democratic channels. It is true that they were enact‐ ed in Parliament and without (physical) violence, but it is utterly false that they were performed through democratic channels: they ignored the minorities (in fact a majority in this case as they represent less than half of the Catalan popula‐ tion) in Parliament, the rights of the opposition deputies were disregarded, and parliamentary procedure was deformed beyond all recognition. A pseudo-refer‐ endum was held without any guarantee and independence was unilaterally de‐ clared. Those responsible for these decisions must assume their legal responsibil‐ ities, just as they would in any democratic state around Spain. Not for having committed rebellion, a category of offence in which it is difficult to classify what happened, but for having broken the pact of coexistence that was accepted by all through democratic channels four decades ago in the Constitution and again in the fundamental Catalan institutional norm, the Statute passed in 2006. At present, the judicial situation of the pro-independence leaders is very hard.35 Nine of them have already been on remand for one year. In November 2018 the public prosecutors filed their written accusation against them in order to prepare the oral part of the criminal proceedings. The charges are extremely seri‐ ous: rebellion, sedition, misuse of public funds and disobedience. All of them, except for disobedience, entail long prison sentences (rebellion entails a 25-year term) and also being barred from holding office. V.3. 35 Here can be found the current situation and the criminal charges regarding the leaders of the secessionist movement: https://elpais.com/elpais/2018/11/02/media/1541168854_0711 05.html, last accessed 30th October 2018. Argelia Queralt Jiménez 271 The situation of pre-trial remand has been widely criticized by many scholars throughout Spain (myself included), as there appear to be other tools that are less restrictive of rights but with equal efficacy in protecting the aims of the provi‐ sional remand: the risk of absconding and of evidence destruction. Furthermore, the criminal charges against the secessionist leaders have been much disputed, in particular those of rebellion and sedition. The offence of rebellion was intro‐ duced in our legal system in 1995 with a clear aim: to prosecute violent upris‐ ings, with or without weapons. Most scholars and practitioners have argued that none of the acts undertaken by the pro-independence leaders constitutes a violent uprising. Sedition is a non-violent but tumultuous uprising. Again, there are seri‐ ous reservations regarding the concurrence of this element “tumultuous”. Some scholars submit that, at most, the charge of conspiracy to commit sedition could be considered. It is clear that there was disobedience, as they failed to follow the binding indications of the Government, the judiciary, and the Constitutional Court. In respect of the misuse of public funds, the evidence will be critical. The myth of a “single Catalan people” President Torra constantly refers to “the people” of Catalonia. And the truth is that such a single, homogeneous population does not exist. As the charts drawn up by Mario RIOS show,36 Catalonia is very diverse, also in its preferences re‐ garding the referendum and regarding the relationship with Spain. Some exam‐ ples can be seen in the following charts: V.4. 36 Mario Rios, La Belgicanización de Cataluña, in: Agenda Publica, http://agendapublica.elp eriodico.com/la-belgicanizacion-de-cataluna/, last accessed 30th October 2018. He has also prepared the English version of the charts included in this section. The Populist Drift of the Catalan Pro-independence Movement 272 1) Preferences as regards territorial models vs. feeling of belonging: 2) Do you want Catalonia to be an independent state? vs. feeling of belonging Argelia Queralt Jiménez 273 In fact, and although it cannot be compared to the results of a referendum, the results of the last election in Catalonia were as follows: Results of 2017 elections Political Party Seats Votes For/against independence Cs 36 1,109,732 25.35 % against JxC 34 948,233 21.66 % for ERC 32 935,861 21.38 % for PSC 17 606,659 13.86 % against CatComú-Podem 8 326,360 7.46 % against CUP 4 195,246 4.46 % for PP 4 185,670 4.24 % against What can be seen from the results of this election is that there is not a single, homogeneous population in Catalonia demanding independence. At most, 49% of citizens support it. Of course, such a percentage is considerable, and that is why the situation deserves political answers. However, 49% is not even a great majority of the population of Catalonia. So, again, every time President Torra or other Catalan leaders claim that “the people” of Catalonia want, demand, clam‐ our for independence, the reality of a divided Catalonia should be foremost in our minds. The right to vote, the right to decide and the right of self-determination In every democratic system the right to vote is recognized both in the active di‐ mension, to cast a vote, and in the passive dimension, to be elected. The Spanish Constitution recognizes the right to vote and to be elected in Ar‐ ticle 23 SC. In fact, Spaniards vote in at least three different elections: local, re‐ gional and state. Regarding the definition of our political system, Spain is a Par‐ liamentary system. Our Parliament is composed of two Chambers: the Congress and the Senate. Both of them are elected by the citizens every four years. As to the Autonomous Communities, every four years the citizens of the given region vote for the members of their Parliament. Finally, municipalities also call elec‐ tions every four years. Of course, there are some causes that can lead to early elections being called. Therefore, every time that the secessionist supporters were shouting “we want to vote”, to a certain extent, they were pretending to be in a country where voting V.5. The Populist Drift of the Catalan Pro-independence Movement 274 is not a reality. However, what lay behind that slogan was “we want to vote in a referendum on independence”. Of course it is a legitimate claim. However, it is not allowed by the Spanish Constitution. In 2012, the President of Catalonia, Mr. Artur Mas, said that if he won the elections by a vast majority, he would take steps towards holding a consultation on the political future of Catalonia. It was the first time that the so-called right to decide entered the public agenda as a political goal. It has developed, as men‐ tioned above, into a demand for a referendum on self-determination.37 According to the international literature, Catalonia is not entitled to the right to self-determination because it does not meet the requirements established by international law and its various bodies of interpretation and application.38 Thus, Articles 1.2 and 55 of the Charter of the United Nations of 1945 recognize, as a general principle, the self-determination of peoples, together with the principle of the territorial integrity of States (Article 2). In 1960, the General Assembly of the United Nations adopted Resolution 1514 (XV) on the Granting of Indepen‐ dence to Colonial Countries and Peoples. This Resolution expressly aimed at recognizing the self-determination of peoples, those entitled to the right and the forms of exercise, aimed at colonies. Later, it was also recognized in Resolution 2625 (1970) on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Na‐ tions, that the right to self-determination within the framework of a State “shall [not] be construed as authorizing or encouraging any action which would dis‐ member or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”.39 37 A very interesting and systematic review of the development of the “right to decide” to the right of self-determination within the Catalan Parliament activity has been carried out by Antoni Bayona, The political future of catalonia: the role of Parliament, in: Revista Cata‐ lana de Dret Public, 54 (2017), p. 1. 38 Mariola Urrea, Cataluña no tiene un derecho de autodeterminación, in: eldiario.es, https:// www.eldiario.es/zonacritica/Cataluna-derecho-autodeterminacion_6_661843839.html, last accessed 30th October 2018. 39 In this respect James Crawford is very clear: “To summarize, outside the colonial con‐ text, the principle of self-determination is not recognized as giving rise to unilateral rights of secession by parts of independent States. [...] Faced with an expressed desire of part of its people to secede, it is for the government of the State to decide how to respond, for example by insisting that any change be carried out in accordance with constitutional pro‐ cesses”, in: The Creation of States in International Law, p. 383 ff., 2007. Argelia Queralt Jiménez 275 Thus, in a democratic State such as Spain, it is understood that self-determina‐ tion does not have an external dimension, in other words, it does not imply se‐ cession. Actually, recognition of the current situation of self-government of Cat‐ alonia would be one of the ways to fulfil self-determination while respecting the territorial integrity of Spain.40 The possibility of applying to Catalonia the doctrine of “remedial secession” that was applied to Kosovo or South Sudan has also been suggested. However, comparing the Catalan situation with Kosovo or South Sudan represents a lack of awareness of what is going on in that region. Catalonia is not undergoing a con‐ text of serious and violent violations of human rights, so any comparison with those regions of the world is clearly inappropriate. In short, neither the San Francisco Charter of 1945, nor the United Nations Declaration of Human Rights of 1948, nor other international treaties recognize the right to self-determination in Catalonia, as we are not a repressed people. It is a different matter to submit that, in the face of the evident political prob‐ lem existing in Catalonia regarding its accommodation in Spain, it should be considered that democratic principles advise that such a problem should be solved through the application of political tools. One of these tools could have been a consultation or referendum (agreed, legal and not legally binding), as I have had the opportunity to propose together with J. L. MARTÍ.41 However, it must be borne in mind that such a decision must be taken by means of an agree‐ ment between the central government and the autonomous government. In a democratic context, unilateralism is not accepted. This is what happened, inci‐ dentally, in Scotland and Quebec, rather than the exercise of the right to self-de‐ termination. The drama behind this scenario is that Catalonia is currently experiencing an absolutely polarized situation; in fact, Juan Rodríguez's data show that politicians are the most polarized. And this is very worrying because in a divided society, all 40 As said by Jaume Saura, Autodeterminación y derecho a decidir: reflexiones desde el de‐ recho internacional, in: Agenda Publica, http://agendapublica.elperiodico.com/autodetermi nacion-derecho-decidir-reflexiones-desde-derecho-internacional/, last accessed 30th October 2018. 41 Argelia Queralt Jiménez / Jose Luis Martí Un referéndum para Cataluña, in: Agenda Pública, http://agendapublica.elperiodico.com/un-referendum-para-cataluna/, last accessed 30th October 2018. Also, F. Rubio Llorene, Un referéndum para Cataluña, in: El País, https://elpais.com/elpais/2012/10/03/opinion/1349256731_659435.html, last accessed 30th October 2018; Joan Vintró, Legality and the referendum on independence in Catalonia, in: Icaria blog, Institut de Dret Public, http://idpbarcelona.net/docs/blog/legality_referendu m.pdf, last accessed 30th October 2018. The Populist Drift of the Catalan Pro-independence Movement 276 political leaders should make every effort to build bridges and seek understand‐ ing among their voters. However, that harms both sides of the divide in electoral terms. The governments of Mr. Torra and Mr. Puigdemont, especially the latter, will only survive politically as long as there is tension, against a background of as much polarization as possible. And hence they force Catalan public institu‐ tions to act as promoters and spokespersons of the occupation of public space, breaking with the rule of neutrality,42 and confusing citizens about the scope of the exercise of freedom of expression. Thus, it is essential to distinguish between spaces and subjects: (Catalan) institutions should not be able to silence the voic‐ es of 50% of the population and neither should they be allowed to become the bearers of the right to freedom of expression, which only private individuals have. A necessary constitutional reform As a final statement, let me just point out some of the key reforms that the SC needs in order to adapt the legal wording to the real developments regarding the model of territorial organization.43 For the sake of brevity, I will just focus on the major issues. First of all, a reform should include the names of the existing Regions in Spain. Actually, it may also be advisable to define the territorial organization VI. 42 Víctor Vázquez, Neutralidad y legitimidad de las instituciones en Cataluña, in: Agenda Pública, http://agendapublica.elperiodico.com/neutralidad-y-legitimidad-de-las-institucion es-en-cataluna/, last accessed 30th October 2018. 43 There are some initiatives, both institutional and academic, regarding the possible extent and contents of a reform of the Spanish Constitution: “Informe sobre modificaciones de la constitución española”, by the Spanish Council of State (2006), http://www.consejo-estado .es/pdf/MODIFICACIONES%20CONSTITUCION%20ESP.pdf, last accessed 30th October 2018; “Acuerdo del consell sobre la reforma constitucional”, draft by the Govern‐ ment of Valencia (2018), http://participacio.gva.es/documents/162282364/165197951/Acu erdo+del+Consell+sobre+la+reforma+constitucional.pdf/ecc2fe28-4b83-4606-97db-d582d 726b27 b, last accessed 30th October 2018; “Un nuevo pacto territorial: la España de to‐ dos”, draft by the Psoe (Spanish socialist party) (2013), http://web.psoe.es/source-media/0 00000562000/000000562233.pdf, last accessed 30 October 2018; “Posicionamiento de la red feminista de derecho constitucional ante la necesaria reforma de la Constitución”, by the Red feminista de derecho constitucional (2017) http://www.mujeresenred.net/spip.php? article2300, last accessed 30th October 2018.; “Ideas para una reforma de la Constitución”, draft by a group of scholars led by Prof. Santiago Muñoz Machado (2017) http://idpbarcel ona.net/docs/actual/ideas_reforma_constitucion.pdf, last accessed 30th October 2018; Argelia Queralt Jiménez (ed.) Propuestas de reforma para la Constitución de 1978 (2018) https://mailchi.mp/d00a315ab66d/newsletter-699649, last accessed 6th December 2018. And, also, Javier García Roca (ed.), Pautas para una reforma constitucional, Madrid, 2014; Pablo Pérez Tremps, Las Reformas de la Constitución Hechas y no Hechas, Valen‐ cia, 2018. Argelia Queralt Jiménez 277 model. I think it would be enough to foresee that Spain is an “Estado autonómi‐ co”: Autonomic State or a Regional State. Secondly, we need a far-reaching reconsideration of the functioning and role of the Senate within the Spanish Institutional framework. While it is supposed to be a Chamber of representation for the Regions, it is largely configured as a sec‐ ond reading chamber. The Congress is clearly pre-eminent over the Senate. Thirdly, we need a clearer system of distribution of competences. The SC pro‐ vides for a twofold list which has created many conflicts between the State and the Regions and a substantial number of suits before the Constitutional Court. Spain may opt for a single-list system with a catalogue of exclusive competences for the State, leaving the remaining competences, the residual power, in the hands of the Regions. It might, however, change the nature of the Statute. What‐ ever the case, a debate on that subject is required. The fourth main reform should be the setting up of a new system of intergov‐ ernmental relations between the Spanish Government and the Autonomous Gov‐ ernment. We need to have a clear path for regional participation in Spanish deci‐ sion-making processes. At present, there is total dependence on the central gov‐ ernment. The State and Autonomous Communities have neither specific obliga‐ tions, nor duties of equal significance. A further, very important point is that the recognition of a system of institutional relations among the Autonomous Com‐ munities, which are not foreseen at all in the existing SC, is required. In fifth place, a new system of what can be called “Regional financing sys‐ tems” should be developed. The Constitution provides two different systems of finance. There is the general one, which, expressed simply, implies that every eu‐ ro collected by the Regions is given to the State and the State, in accordance with the law, transfers an amount of money back to the Communities. The Regions have the competence to regulate a certain percentage of the State taxes and to create or introduce a few others on their own. There is, however, a second and very privileged regime for the Basque Country and Navarre, which is known as “el cupo” (“the quota”): these two regions both levy and collect taxes, and they then transfer a quota agreed between their governments and the State govern‐ ment to the State. It would be desirable to have a stronger system of financing the Regions in the Constitution; this would mean establishing the bases of the fi‐ nancing system in such a way that the regions did not depend on the State so much. However, what we do not have in Spain is a federal culture,44 which I would define as the existence of bilateral institutional confidence between the State and 44 As a recent example of the lack of federal culture in Spain, the comparative work of Alice Valdesalici, Federalismo fiscale e responsabilizzazione politico-finanziaria. Compara‐ zione giuridica ed esercizi di misurazione del diritto, 2018. Actually, the lack of federal The Populist Drift of the Catalan Pro-independence Movement 278 the Regions. Such „Bundestreue‟ is mostly required of the Regions in relation to the State, but not the other way around. This is, of course, a generalization. The origin of such a weakness is, in my opinion, that there is still a lack of consensus among the Spanish political parties as regards the decentralization regime that Spain needs. As far as I am concerned, we need an asymmetric system, because there are considerable differences among the Regions regarding their economic, social and political development. The solidarity principle, recognized in Article 2 SC along with the principles of unity and of autonomy, should be respected as one of the bases of the Spanish decentralization system. However, this principle should not be used as the perfect excuse to defend a homogeneous level of devo‐ lution and treatment of the Autonomous Communities, what is known as “coffee for all”. The principle of “ordinality” should be introduced as a key element. Final remarks The new Government, led by Mr. Pedro Sánchez, cannot stop the criminal pro‐ ceedings against the secessionist leaders; neither can the Government compel the Judiciary to release the politicians held in custody. But, while the proceedings unfold, politics should govern the relationship between the Spanish Government and the Catalan Government in order to reduce the deep divisions among Cata‐ lans and to redress the attitude of the Catalan President from unilateralism to re‐ spect for the legal constitutional order and to negotiate a better way of accommo‐ dating Catalonia in Spain. There have been situations undervaluing the Catalan national identity and its institutions, but there is room and elements for improve‐ ment in the relationship between Catalonia and Spain. In fact, the crisis is not a Catalan one; it is constitutional, and Catalonia is a (badly managed) symptom. The pact of constitutional coexistence needs to be updated, and a reconsideration of the Spanish political and institutional reality is required. But these changes, some deep, need time, maturity and broad agreements. In the mid-term, a referendum may be a legitimate claim. However, at present there is too much mistrust and lack of credibility regarding Catalan institutions. In the judiciary field, Spanish Criminal law should be scrupulously respected in order to administer justice, not some kind of revenge. Our constitutional legal system is at stake. VII. culture has been identified as one of the problems regarding the functioning of the political decentralization of Spain, in: Javier García Roca (ed.), Pautas para una reforma constitu‐ cional. Informe para el debate, 2014, p. 105. Argelia Queralt Jiménez 279

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Abstract

The EU’s vulnerability to crises is not a novelty, but disintegrative trends have reached a new quality. The financial and fiscal crisis shook the Union, which had just been consolidated by the Lisbon Treaty, to its foundations. The refugee crisis becomes a heavy test of European solidarity. For the first time, a member state, the United Kingdom, wants to leave the Union and in doing so, as at least the Brexiteers argue, regain its sovereignty. Even the member states themselves are not spared from moments of disintegration. One might think of the secessionist movements in Catalonia or Scotland etc. Against this background, the SIPE Congress in Hamburg has brought together high-ranking experts from all over Europe in order to explore the tension between integration and disintegration, as well as Europe’s prospects of being “united in diversity”. The discussions paint a differentiated overall panorama of the constantly challenged integration project. With contributions by Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck

Zusammenfassung

Die Krisenanfälligkeit der EU ist kein Novum, doch haben desintegrative Strömungen eine neue Qualität erreicht. Die Finanz- und Fiskalkrise erschütterte die eben erst durch den Lissabonner Vertrag konsolidierte Union in ihren Grundfesten. Die Flüchtlingskrise wird zur schweren Belastungsprobe für die europäische Solidarität. Mit dem Vereinigten Königreich will erstmals ein Mitgliedstaat den Integrationsverbund verlassen und, so die Brexit-Advokaten, seine Souveränität zurückgewinnen. Auch die Mitgliedstaaten selbst bleiben von Desintegrationsmomenten nicht verschont, man denke etwa an die Sezessionsbestrebungen in Katalonien oder Schottland. Vor diesem Hintergrund hat die Hamburger Jahrestagung der SIPE hochrangige Expertinnen und Experten aus ganz Europa versammelt, um im Spannungsfeld von Integration und Desintegration auszuloten, welche Zukunftschancen Europas „Einheit in Vielfalt“ hat. Die Diskussionen zeichnen ein differenziertes Gesamtpanorama des immer neu herausgeforderten Integrationsprojekts. Mit Beiträgen von Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck