In instances of political complications and turmoil, people often turn to constitutions and legislature to find answers, as they seem to be the only variable that is considered constant and stable as they are specifically designed as a path to justice. However, the constitutionalist approach towards peace and justice does not always offer a peaceful political solution, and it can be a dangerous oversimplification to assume so.
Constitutions are helpful documents that can both provide a framework for the overall structure of a political system, outline the citizens’ basic rights and obligations, and provide a basic source of national law that conforms to the state’s general national values. In most legal systems, it is considered the most powerful legal document with which all other documents and laws should be in accordance. Some people, known as constitutionalists, strongly believe that it is not only the most fundamental principle of legal life, but also political life. All these elements of the constitution therefore make it an obvious reference to turn to for answers on a variety of controversial political questions.
However, there are some issues and conflicts that cannot solely rely upon the constitution to fix. Indeed, in some cases, the use of legal action before any type of dialogue can increase tensions and leave the underlying political questions unanswered. Because constitutions have so much authority, they give the impression that they are an ideal document, that if obediently followed, will always lead to what is right and what is true. However, they can also be used as a way to limit the powers of minority groups and discourage social change. One example where enforcing the constitution on a dynamic, heterogeneous cultural demographic does not seem to be helping is the Catalonia crisis, in which ‘constitutionalists’ and Spanish nationalists tend to turn to the constitution for political resolution.
Catalonia is one of many semi-autonomous regions that have contributed to the new surge of separatist movements across economically prosperous countries; others include the Flemish, the Quebecois, and the Scots. Although this wave of separatism in advanced countries is quite new, the idea of separatism has been prominent throughout the nineteenth and twentieth centuries. The main difference appears to be that in the past, separatist movements arose within colonial empires, in which ethnic groups fought for freedom and independence. However, although the context of modern separatism is different, some of the same cultural and ethnic sentiments are common with those of imperial independence movements. Catalonia has a history of sentiment of Spanish repression, which has some parallels with that of a repressed minority in an empire.
These sentiments, along with political change, have reinforced a Catalan national identity, which now fuels the current political conflict in Spain. At the heart of the Catalonia conflict is the question of how much authority should be given to the 1978 Spanish constitution in limiting Catalonia’s right to self-determination.
Historical and Political Context
The history of Catalonia is important to provide the political context needed to understand the separatist movement today, and to provide insight into the motivations for and against independence. Throughout its history, Catalonia has had varying degrees of autonomy. It was believed to be its own nation until the 1701-1714 war of Spanish Succession, when Catalonia supported the losing Habsburg side and was subsequently stripped of its institutions and rights to self-governance. Under Philip V of Bourbon, Catalonia was merged into a unified Spain whose political power resided in Castile. Some specific examples of eighteenth century Catalan suppression include the replacement of Catalan laws with Castilian laws, centralized taxes, and closing of all Catalan universities but one, which was used to impose Castilian values onto Catalan students. This set Catalonia up for years of oppression and a general feeling that Catalans were unwillingly forced into Spanish union, in spite of having they have their own language, culture, and historical institutions. While Catalonia was not a sovereign state even prior to 1714 – a formal, sovereign political structure, which encompasses people, territory and institution – it had a collective identity grounded in history, culture and language. During the nineteenth century, this led to a strong sense of Catalan national identity.
This national identity was strengthened between 1936 and 1975 during the Spanish civil war and the Franco dictatorship. This historical period is particularly relevant to the tensions between Catalan and Spanish nationalists today, as it is recent enough to still be in living people’s memories. Franco removed Catalonia’s regional autonomy, which had been restored in 1913, taken away, and restored again by the Spanish Republic in 1932. After the occupation of Catalonia by Franco’s troops between 1938 and 1939, Catalan language and culture were systematically oppressed. Josep Maria Solé i Sabaté, a historian specializing in the Spanish civil war and post-war Spain describes this persecution as “an attempt of cultural genocide that sought to do away with its specific national identity.”
When Franco died in 1975, Spain transitioned into a social democracy which included general elections, a new constitution with federal elements and a new Statute of Autonomy, presenting promising new opportunities for Catalonia. The 1979 Statute of Autonomy did indeed grant Catalonia considerable autonomy, and even referred to it as a ‘nation’ in its 2006 revision. However, Spain’s conservative Popular Party (PP) opposed the passing of the 2006 statute by the Spanish Parliament, and challenged it before the Constitutional Court by claiming that the statute contradicted the constitution. In 2010, the government issued a reform of the Statute of Autonomy, which maintained Catalonia’s status as an autonomous community with the Spanish Kingdom but limited its level of autonomy. This was a major turning point for the Catalan independence movement and triggered a new phase of Catalan nationalism, this time with the objective of complete independence. In 2017, Catalonia held an independence referendum despite the constitutional court declaring it unconstitutional, so the central government chose to involve civil guards to prohibit entrance into polling stations through any means necessary, including violence. While constitutionalists and Spanish nationalists considered this forceful attempt to constrain Catalan voters as simply enforcing the constitution, separatists considered it to be a violation of basic principles of democracy.
As the referendum was considered illegal, the members of the Catalan government who were involved in organizing the referendum were detained and put on trial. In October 2019, they were convicted of up to 13 years of prison time for charges including sedition and disobedience. The sentences were met with outrage in Catalonia, leading to violent protests on the streets of Barcelona.
Thus far, these protests have caused considerable damage, and clashes with the civil guards have resulted in several casualties, and all of these legislative decisions seem to have only caused more outrage and division within both Catalonia and Spain. Spanish nationalists consider legislation to be a concrete, fixed variable which must be followed and enforced under all circumstances. This argument, however, has no consideration for the impacts of social change. I would argue against the idea that the answer to the Catalan crisis can be found in legislation, as enforcing strict laws before any type of dialogue only encourages hostility.
An important question is whether the right to self-determination should be considered a fundamental right of any community of people that defines itself as a nation, as separatists argue, or whether the constitution of the state in which this community lives ought to have ultimate authority on whether self-determination should be granted. What can be observed thus far is that enforcing rigid, homogeneous laws on a dynamic, heterogeneous cultural demographic suggests that solely relying on the constitution for some resolution increases political hostility rather than providing space for dialogue to reach a compromise.
The basic principle of self-determination is a community’s right to decide their own political outcomes, including the exercise of sovereignty and their selection of government and institutional structures. The modern root of this concept can be traced back to Woodrow Wilson’s 14 points that helped end World War I through progressive ideas on foreign policy. One of Wilson’s primary arguments was that peace can only be facilitated when nations have the right to self-determination. The end of World War I was a time to restore peace and minimize further human loss. Wilson promoted a solution through a holistic understanding of what is necessary to facilitate peace without limiting his ideas by conforming to any type of constitution or legislative text. As Wilson stated, “National aspirations must be respected; peoples may now be dominated and governed only by their own consent. “Self-determination” is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril.” The United Nations later solidified the importance of self-determination by adding it to Article 1(2) of the UN Charter to explain that one of the purposes of the UN is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Soon after, other treaties also began including self-determination as a fundamental right, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
In her research into self-determination in the ILSA Journal of International and Comparative Law, Valerie Epps states that “this type of right is in fact much more likely to be recognized by fully democratic states, as opposed to dictatorial states, because democratic states have become accustomed to the notion of ruling by the consent of the governed.” She brings up the important point that although the right to self-determination does not apply to every country as a fundamental right, those that do provide it show that their nation values principles of democracy and the importance of the will of the people. Spain’s unwillingness to grant this right by using the limiting powers of the constitution therefore arguably reflects dictatorial qualities, giving Catalan separatists a sense of little progress since the Franco dictatorship.
Role of the Spanish Constitution
The Spanish constitutional framework is in direct conflict with Wilson, Epps, and the UN’s idea of the importance of the right to self-determination, as section 2 states that “the constitution is based on the indissoluble unity of the Spanish nation,” while article 149 states that most national competencies cannot be delegated to autonomous regions. Although semi-autonomous regions like Catalonia are granted constitutional rights to govern internal affairs such as healthcare, they are severely limited by section 2 and article 149. Furthermore, article 155 grants Spain tremendous power of intervention which has been used to justify imposing central Spanish rule on Catalonia. Article 155 states that “if a self-governing community does not fulfill the obligations imposed upon it by the constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the government may take all measures necessary to compel the community to meet said obligations, or to protect the above-mentioned general interest.” The mentioned ‘obligations’ refer to article 2, and the ‘general interest of Spain’ is a variable that can be interpreted by the constitutional court, which regards Catalan secession as a threat to Spanish interests. This is what ultimately allowed for the government to legally ‘take all measures necessary,’ including force, to try to inhibit the unconstitutional 2017 Catalan referendum. Although constitutional reform is possible, it can only be achieved with a 2/3 majority in both chambers, which is very difficult, particularly because the majority of Spain is not in favour of granting any region the ability to secede.
The argument of constitutionalists, however, is that the constitution knows best, and in some radical cases, that the constitution should remain unchanged, because the basic values and rights of the Spanish people and their semi-autonomous regions should remain constant and stable. However, research suggests that this is not an effective solution. The constitution was only to a very limited extent written as a document that was meant to accommodate pluralism and multiculturalism, rather it was written to create an idea of ‘common’ Spanish values. However, these do not exist in reality, as Spain consists of a vastly multicultural demographic. Therefore, while it is important to have basic laws to promote order, the specificities of Catalonian autonomy cannot be examined solely through legislation, but also through cultural understanding and dialogue. Law researchers Mila Versteeg and Anne Meuwese state that “law has its own internal logic and legal scholarship has its own highly valued research activity, which usually has little to do with causal explanation… Legal scholarship often follows the rules of persuasion and advocacy, not the rules of inference.” This conclusion is further supported by researchers like Jaime Lluch of the University of Pennsylvania, who agrees that “the field [of politics] faces new questions and challenges – such as those posed by the politics of accommodation – and for these, the traditional comparative law methodology will prove inadequate.”
The Catalonia Crisis offers an opportunity to assess ways in which people in power seek to find solutions to complex political issues. The heavy reliance of the central government upon legislation has so far proven to be ineffective, imposing standardized ‘Spanish’ values through a constitution on multicultural populations with distinct national identity, including Catalonia’s, ignores the essential problem that needs to be solved. The current heightened political tensions between Spanish Catalan Nationalists shows that constitutionalism is not an effective path to reach political agreement.
Instead, peacefully resolving this political conflict requires intercultural dialogue, which has been severely lacking amongst the government officials of both Spain and Catalonia. The immediate enforcement of legislative action increases the sense of political powerlessness for Catalonians and thereby polarizes further. Rather than throwing people in prison with harsh sentences and religiously following legislation, officials should be more open to dialogue, cultural understanding and possible legislative reform.
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