Saturday, 2 March 2013

Courting Disaster

 
 
 
 
 


 
The Spanish Constitutional Court
 
 
 
 
"Spain versus Catalonia" is the simple but revealing headline over the review of today's front pages produced by the Catalan television channel TV3. It draws attention primarily to the Spanish government's decision to refer the Catalan Parliament's recent Declaration of Catalan Sovereignty to the Spanish Constitutional Court. In consequence of this referral all Catalan Government activities stemming from or based on the declaration should in theory be required to be suspended pending a ruling if the court determines that the referral is admissible. The court is not expected to begin its deliberations on the admissibility of the referral until the month of April.
 
The activities in question may be taken to consist in preparations for a Catalan independence referendum in 2014, in connection with which the Spanish parliament has just decreed that there are to be no negotiations between Madrid and Barcelona with a view to arriving at an arrangement comparable to the Edinburgh Agreement, in accordance with which a binding referendum on Scottish independence is to be held by the Scottish Government, also in 2014, leading to independence negotiations between the Scottish and UK governments if independence is approved by a majority of voters in Scotland. In other words, the Castilian Establishment rejects both unilateral and bilateral preparations for a secessionist referendum. It does so on the basis of its repeated assertions that (i) such a referendum cannot be lawfully authorized within the boundaries of the territory of the Spanish state and that (ii) it is the duty of the Spanish government to uphold the law irrespective of the result of the Catalan general election which was held on November 25th and notwithstanding resolutions passed by the devolved Catalan Parliament.
 
The response from Barcelona? The Catalan Government maintains that (i) the purpose of state institutions is to allow the democratic will of the people to be both expressed and acted upon and that (ii) the democratically elected Parliament of Catalonia having duly passed a resolution declaring that the Catalan people are sovereign, their wishes in respect of their constitutional future are paramount and should (and indeed will), therefore, be acted upon.
 
The Castilians have replied that, on the contrary, the constitution of the Spanish state is paramount.
 
Then, lo and behold, up pops a sensational media report concerning a serving Spanish general, Juan Antonio Chicharro Ortega, who has publicly dissented from both views, averring in a debate organized by the Fundación para la Magistratura that in fact the country is paramount and that, if the constitution, which is "only a law", fails to defend the territorial integrity of the state by keeping secessionists in check, it falls to the armed forces to take matters in hand.

Memories of the armed forces taking matters in hand happened to be fresh in people's minds at that moment, as the 32nd anniversary of one of the most recent major military interventions in Spanish politics, the Tejero incident (which was followed by conspiracies in 1982 and 1985), had just been officially commemorated on February 23rd.

At this point, improbable though it may seem, the First Minister of Wales burst in upon the scene:
 
 
 
 

 
in Barcelona on Saint David's Day
 
 
 
 
It is little wonder that Jones the politician seemed somewhat bemused and, with respect, out of his depth in the company of Spain's public enemy number 1. Innocently voicing the apparently pedestrian but in fact highly controversial and indeed explosively timed suggestion that the constitutional future of Catalonia is a matter for negotiation between the Spanish and Catalan governments, he appeared to be a little taken aback by the Cheshire-cat grin on the face of the President of the Generalitat, who naturally seized this delectably convenient opportunity to state publicly at a crucial moment in the history of Catalonia, in the presence of the UK ambassador, no less, that, unfortunately, that view, to which he himself subscribes, is emphatically not accepted by the Spanish government, as its rejection of the Catalan people's right to decide and its referral of the Declaration of Catalan Sovereignty to the Spanish Constitutional Court amply demonstrate:
 
"We are told by the Spanish government and other institutions of the Spanish state that they want to sit down with us at the table and talk, that they desire consensus, but this is not true, as the referral of the Declaration of Catalan Sovereignty to the Spanish Constitutional Court shows that they are in fact obstructing dialogue." (Artur Mas)
 
Be that as it may, by linking the Catalan people's right to decide their constitutional future to a parliamentary assertion of Catalan sovereignty, Mr Mas has manoeuvred the Spanish government into taking the massively provocative step which it has just taken in crystallizing its consistent and persistent inflexibility in such a way as to bring the Spanish state into direct conflict with Catalan democracy and indeed democracy itself. The road to a constitutional settlement having been well and truly shown to be well and truly blocked, the tribune of the people is now able to point in good conscience to a route which, although deemed to be out of bounds by the Rajoy administration, appears to be open to the Catalan people in practice, i.e. the road leading to an independence referendum defiantly organized unilaterally by the Catalan Government.
 
If that route were to become impassable as a result of actions taken by the Spanish state, the remaining option would be none other than a unilateral declaration of independence by the Catalan Parliament, based on the Declaration of Catalan Sovereignty, whatever ruling the Spanish Constitutional Court might come up with on that subject. UDI would be followed by a referendum to approve a constitution adopted by the Catalan Parliament. Approval of the constitution by a majority of Catalan voters would complete validation of the declaration of independence and lead eventually to universal recognition of the new Catalan state, according to advocates of this procedure.
 
The reasons which one can imagine the Catalans presenting to the international community in justification of a UDI would in essence be not altogether unreminiscent of the reasons offered for rejecting Castilian rule back in 1641, when, not unlike the Scots in respect of England, they sought the protection of the Kingdom of France:
 
"The main reason why the Catalans have released themselves from any obligation to acknowledge the authority of the King of Spain is, they say, that he has suffered their privileges to be violated by allowing extraordinary disorder at the hands of military forces and that he has himself violated those privileges in other ways on his own authority. This extinguishes their duties in respect of that authority, as these were dependent on faithful maintenance of their privileges (...)" (Mémoires et instructions pour servir dans les négociations et affaires concernant la France, Denys Godefroy le jeune, 1689)
 
What goes around comes around.
 
 
 
 
UPDATE, March 5th
 
 
 

 


 
 
 
 
 
Yesterday the Spanish and Catalan media were reporting that the Catalan Chief Prosecutor, Martín Rodríguez Sol, had stated in an interview that it is legitimate for Catalans to aspire to vote on the question of self-determination within an appropriate legal framework. Today it is being reported that the Spanish Director of Public Prosecutions, Eduardo Torres-Dulce, having apparently taken the view that this amounts to fomenting secessionism, has initiated proceedings to remove him from office in consequence of this.
 
Unsurprisingly, the reaction of the Catalan Government has not been slow in coming, as the Castilian Establishment is presenting every appearance of making a start on carrying out its threat to disqualify persons from holding public office who are deemed to have contravened provisions of the Spanish constitution in such a way as to facilitate secession of a part of the territory of the Spanish state.
 
The President of the Generalitat, Artur Mas, is quoted as saying that Spain is demonstrating its low regard for democracy"When a general threatens to unleash the army on the people the Spanish state does nothing about it, but if you speak up for the people you are sent packing." (Ara, March 4th)
 
The Spanish Minister of Defence, Pedro Morenés, almost immediately took to the airwaves to reply to Mr Mas with the following very pointed remark: "Anyone who violates the rule of law in Spain will be dealt with."
 
Meanwhile, the Catalan Parliament is today reported to be proceeding to take the first step towards providing a legal framework for a self-determination referendum which, according to the Spanish government, violates the rule of law in Spain.
 
The fat would appear to be in the fire even if the shit has not yet hit the fan.
 
 
 
UPDATE, 23:30
 
 
Catalan Chief Prosecutor Martín Rodríguez Sol having now found it necessary to submit his resignation over the Castilian response to his remarks concerning the proposed consultative referendum on Catalan self-determination, First Minister Mas has asserted that liberty is "under threat" in the Spanish state and that democracy "is not well established" there:
 
"In a country in which liberty was respected and democracy was well established this sort of thing could not happen, because it would be considered to be monumentally scandalous."
 
In the light of the rather ominous developments of the past few days it may even more confidently be expected that the Catalan Parliament's consulta legislation will be vetoed by the Spanish state. The main Catalan opposition party, the pro-independence Republican Left of Catalonia (ERC), is reported to have concluded that this is likely to occur by the month of July. A Catalan unilateral declaration of independence may conceivably follow (well before the Scottish independence referendum) in response to what will no doubt be represented as political repression practised by a state in which democracy is not well established.
 
In the meantime, once a Catalan Chief Prosecutor is in place who is considered to be a safe pair of hands from a Castilian perspective, disqualification from holding public office may perhaps be visited upon various secessionist politicians in due course . . . and indeed, bizarre though it may seem, even possibly prosecutions for crimes against the state, i.e. acts committed for the purpose of fomenting secessionism.
 
Improbable? Not really. In the name of the Estado de derecho and the rule of law all manner of offences against democracy may yet transpire, as the Castilian capacity for fuelling the already substantial demand for Catalan independence simply beggars belief. It is in fact so staggeringly breathtaking that it tempts me to recall a passage in a Catalanist tract published over a century ago, which was quoted in a recent post here:
 
"In considering every issue, whatever it may be, one encounters two diametrically opposed approaches: on the one hand the Catalan approach and on the other the Castilian or Spanish one; while the first is positive and realistic the second is fantasist and charlatanic; the first is informed by foresight, of which the second is totally devoid; the first is drawn from the climate of thought of modern industrial society, while the second is nourished by the prejudices of the hidalgo burdened by debt and puffed up with pride. Such are the distinctive characteristics of two peoples who are the antithesis of one another (...)" (La Question catalane: l'Espagne et la Catalogne; Notice adressée à la presse européenne par le comité nationaliste catalan de Paris, 1898)
 
 
 
 
POSTSCRIPT, March 11th
 
 
The following quotation from a lecture given by Professor Michael Keating to an audience in the Falkland Islands the other day is worth bearing in mind in connection with the conflict between Catalan democracy and Castilian constitutionalism:
 
"In the famous Quebec Reference case following the referendum in 1995 the Federal Government referred to the Supreme Court the question of whether Quebec had a right to become independent from Canada, and the Supreme Court gave the obvious answer in that they read the constitution and there was no right to secede. Well, you don't need the Supreme Court to do that. It takes you about 15 minutes to read the constitution of Canada, and you know it doesn't say there is a right to secede, nor does the British constitution - do we have one? - or the Spanish constitution.
 
But then the Supreme Court said that it was not enough just to look at the constitution, because there are broader questions of democracy. Underlying the constitution is the idea of democracy. The constitution is subordinate to the principles of democracy and peaceful accommodation. Otherwise the constitution is meaningless. It has to be interpreted in that spirit, and our interpretation is that (...) there must be negotiations in good faith." (Michael Keating, Falklands referendum lecture, Falkland Islands News Network, March 8th 2013)