Constitutional waters are turbulent in Spain, as a result of recent events in Catalonia. On September 11, large numbers of Catalans took to the streets in Barcelona to celebrate the annual Diada nacional. This time, however, they did so under a new banner: “Catalonia: the next European state”. People chanted “independence, independence”. Although there is controversy about the number of people who participated –the organizers claimed more than one and a half million people- there is no doubt that the demonstration was a great success.
The next day, the President of the regional government in Catalonia, Artur Mas, made a solemn statement at the Palau de la Generalitat, the see of the executive branch. He said he embraced the goals of the demonstrators, and expressed his commitment to construct a new Catalan state within the European Union.
A week later, Mr. Mas met the President of the Spanish government, Mariano Rajoy. The meeting had been planned many weeks before, to discuss the possibility of setting up a new fiscal arrangement for Catalonia. The Catalan parliament had resolved in July that negotiations should be started with the central government to obtain a new fiscal system for the region. The new system should be similar to that which the Basque Country and Navarre have traditionally enjoyed, which is different from the ordinary arrangement that applies to the rest of Spain. The special “fiscal pact” that Artur Mas proposed would basically allow the Catalan authorities to collect all the taxes in the region. A certain amount of money would then be transferred to the Spanish government, to pay for the services provided at the national level, and to contribute to redistributive solidarity. President Rajoy offered to improve the existing fiscal system, but refused to grant Catalonia a special treatment. As a reaction, Artur Mas decided to call early elections to the Catalan parliament, which are going to be held this Saturday, November 25.
The big issue on the table now is whether a process of secession will be started once the new Catalan parliament is instituted after the elections. Political parties are expected to clarify their respective positions as to whether Catalans should be asked about independence in a referendum. They are also expected to tell their voters whether they are for, or against, independence.
All this raises various interesting constitutional issues. The main problem, for the moment, concerns the conditions under which a referendum on secession can be validly held. The Spanish Constitution is quite clear when it provides that it is the state (the central government) that has the exclusive power to authorize referendums in Spain. Article 149.1.32 explicitly says so. Even a local or regional referendum needs to get approved by the state. Now, suppose that the Catalan parliament decides to ask the government in Madrid the necessary permission, and Madrid refuses to grant it. What next? Artur Mas has explained that the Catalan parliament will approve a law empowering the regional government to unilaterally organize a “popular consultation” (consulta popular). He relies on the theory that says that the Constitution requires the central government´s green light in the case of a referendum, but not in the case of a popular consultation.
The problem with this theory is that there are no relevant differences in Spain between a referendum and a popular consultation. As a general rule, referendums in Spain are not binding: they are merely “consultative”, as article 92 of the Constitution provides. (The basic exceptions concern the referendums that are held to approve or amend the Constitution, or to approve and amend the regional statutes of autonomy). So there is no difference between a referendum and a popular consultation from the point of view of their binding quality. Some scholars in Catalonia, however, have tried to imagine ways to establish differences. They have suggested, in particular, that the Catalan legislature could define the class of people who are allowed to participate in the consultation differently from the class that can take part in a referendum. For these purposes, they mention an opinion by the Constitutional Court (decision 103/2008) that drew a connection between the referendum and the right to vote. In Spain, one must be 18 years of age or older to exercise this right. So, these scholars contend, the new Catalan law could establish that the popular consultation is open to citizens that are 16 years of age or older. This strategy, however, is not persuasive: if the government in Madrid has to authorize a referendum where citizens who are older than 18 can participate, its authorization is also necessary, a fortiori, when the circle of citizens who can take part is even wider!
In any case, if the Catalan parliament passes such a law, the central government can challenge its validity through an appeal to the Constitutional Court. The latter would be required to suspend the law, as an interim measure. If the Catalan government proceeded with the consultation, in spite of the Court´s interim decision to suspend it (or in spite of its final decision to strike it down), the Catalan President could be charged with contempt of court. It is important to bear in mind that any citizen in Spain (even if not a victim) can bring criminal charges. This is the actio popularis right that has been a traditional feature of Spanish criminal law, which the Constitution enshrines (article 125). So even if the central government asked public prosecutors not to react against the Catalan officials, it could not prevent criminal procedures from getting started –citizens would take the burden.
It is important, therefore, for the Catalan authorities to convince the Spanish government to authorize a referendum on independence. Otherwise, their illegal actions would produce serious legal and political consequences.
Some voices, however, have argued that it is not possible in Spain to hold such a referendum, even if it obtained Madrid´s green light. The reason is that the Constitution declares in article 2 that the unity of Spain is “indissoluble”.
The counter-argument, of course, is that it is possible to modify the Constitution. Article 2 can be reformed, if the right procedures are followed. The principle that proclaims the “indissolubility” of the unity of Spain is not immunized against constitutional changes. Indeed, the Constitutional Court has insisted in its jurisprudence that the Constitution is open to any transformation, provided the existing procedures of amendment are observed. The Court has held, for example, that it is perfectly legal for a nationalist political party to work for the independence of a region, since all political programs are acceptable, provided democracy, fundamental rights and the rule of law are complied with (decision 48/2003).
The procedure to alter article 2 of the Constitution, however, is quite burdensome. A supermajority of 2/3 of both chambers of the Spanish parliament must first vote in favor. Early elections are then called, and a new parliamentary supermajority of 2/3 is required. A referendum throughout Spain is finally to be held, and a majority must vote in favor.
A controversial question, in this connection, concerns timing: should the Constitution be amended before, or after, the referendum on Catalan independence is called? The Constitutional Court once held that it is not possible to organize a regional referendum that deals with a matter that would require the amendment of the Spanish Constitution (decision 103/2008). What the Constitutional Court said makes sense as a general rule. If, for example, abolishing the monarchy requires a constitutional amendment, the steps to be taken are those defined in the Constitution, which must be taken in the right order. It is not possible, in particular, to organize a regional referendum to trigger the process. It can be argued, however, that secession is a special case. It would be absurd to start the process of constitutional amendment to allow Catalan independence, before there is any reason to believe that Catalans really want to quit Spain. A referendum in Catalonia should be the first step.
There is no doubt that interesting constitutional questions will emerge in the coming months. Whether a majority of Catalans really want to be asked about secession, and whether a clear majority would be in favor of secession, remains to be seen. For the moderate sections of nationalist public opinion, a “yes” in a referendum for independence would generate anxiety: the process towards the creation of a new state is full of obstacles, including the conditions under which Catalonia would become a new member state of the European Union. But a “no” in the referendum would also be a problem for them: the Spanish government would probably have a stronger position in its future negotiations with the Catalan government about the fiscal pact and other matters, if it could point to the fact that a majority of Catalans had voted against secession.