Sequestering Catalonia

Sequestering Catalonia

It now seems depressingly likely that Spain heads into a long-term low-level conflict with one of its most prosperous regions, doing damage to the economy of Catalonia, the reputation of Barcelona amongst foreign visitors and the political and legal systems of Spain. A series of tit-for-tat events will ensue. There may be parallel parliaments and governments; parallel elections; incensed protestors; occasional acts of violence; political uncertainty; flight of capital; controversies over the use of legal process to enforce the writ of central government; examples of how weak Madrid looks when it cannot enforce its injunctions; and more.

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By Matthew Parish

Spain’s relationship with its wayward province of Catalonia is the source of Europe’s most serious recent constitutional crisis. After a chaotic referendum held by Catalonia’s regional government on 1 October 2017, opposed as illegal by Madrid and unsuccessfully suppressed by Spain’s national police, the Catalan government declared independence on 10 October 2017. But simultaneously the Catalan authorities stated that they would be suspending the effects of independence pending negotiations with the Spanish central government that everybody knew would not take place. Madrid subsequently refused to engage in dialogue, demanding that Catalonia publicly renounce even the idea of independence.

When the Catalan government again called for discussions, the Spanish government declared its intention to invoke a hitherto obscure provision of its Constitution. This legal power was included only at the instance of Falangist military elements in the delicately negotiated post-Franco 1978 Spanish democratic political settlement. Article 155 of the Spanish Constitution, copied from the Basic Law of the Federal Republic of Germany, seemingly permits the central government to revoke the autonomy of a region. At the time of writing, the Spanish government is threatening to dismiss all Catalan government ministers; replace them with officials appointed by Madrid; circumscribe the powers of the Catalan parliament; and hold premature elections within six months. Three of the largest parties in the parliament in Madrid support this approach, as apparently does the Spanish King. The majority of Catalonia’s elected representatives, even those opposed to Catalan independence, do not.

One cannot help wondering why anybody thought that invocation of Article 155 might be a good idea, save as a perilously risky mechanism for removing Catalonia’s pro-independence leader Charles Puidgemont. Even assuming that the Spanish courts uphold a pro-government construction of an obscurely worded legal provision (as they undoubtedly will), the use of an unprecedented legal power to rein in a regional independence movement will inevitably appear draconian. Any process of negotiation or dialogue would presumably be more attractive. Madrid says there is nothing to negotiate: the Spanish constitution does not permit secession of a rebellious province. Central law enforcement authorities are also using or threatening prosecution for a series of inchoate political crimes under Spain’s criminal code, such as sedition and rebellion, against peaceful political leaders. One might fear that Spain is reverting to a legal tyranny characteristic of the country’s pre-democratic era.

The Spanish Constitution has recently been interpreted by the country’s judiciary to prohibit regional secessionist political acts, even where, as in Catalonia, those actions are peaceful and in pursuit of a democratic mandate. But the argument that Catalan independence is foreclosed by Spanish law is not politically attractive. If there is no democratic mechanism by which Catalans can express their desire for further autonomy or independence from Madrid, then the law has the effect of suppressing democratic desires.

This conclusion holds true for all Catalans, whether or not they favour independence. Until recently, polls indicated that a majority of Catalans did not, although a majority did want a referendum on the issue so that it might be resolved one way or the other. Alienation of Catalan democratic instincts through the application of legal instruments that make no room for voting on an issue of fundamental importance may recently have tipped a majority of Catalans in favour of independence. If so, then that was a needless and harmful outcome. If one desires to preserve the unity of Spain, then the use of heavy-handed legal instruments that so alienate a regional population as to cause the majority of them to want to leave the country, when previously they did not, is surely indicative of clumsy authoritarianism.

Moreover it is not clear how any decisions of Madrid’s central government under Article 155 that interfere with Catalonia’s self-governing status can be enforced as a practical matter unless Puidgemont resigns voluntarily. Although an estimated 4,000 additional national police officers have remained in Catalonia since their failed attempt to prevent the 1 October 2017 referendum, these reinforcements managed to prevent voting in perhaps only 5% of polling stations. Are they really up to the job of throwing politicians and civil servants out of their offices and suspending the work of the Catalan parliament, as has been threatened? One can only imagine the scenes that are shortly to emerge on the international media network, if the Police really attempt to do such things. If they do not, then the Catalan government will presumably continue working notwithstanding its having been ostensibly dismissed. Madrid will look impotent. Neither outcome is attractive.

Already Madrid has said it will rely upon Catalan local police, the Mossos d’Esquadra, to arrest Puidgemont if he affirms the Catalan declaration of independence. The Spanish Chief Prosecutor has threatened to take the Mossos under national control if they do not comply with his orders. It is unclear how the Prosecutor would enforce this threat either. The Mossos refused to use force to prevent people from voting on 1 October 2017. Their loyalty to the central government is therefore doubtful.

Arresting, charging and imprisoning Catalan politicians with miscellaneous crimes in respect of peaceful political activities would surely carry a heavy price for the Spanish central government. Otherwise the President of Catalonia would already have been arrested. The risks of uncontrollable civil disturbance and international censure are presumably what is deterring Madrid from undertaking such a move so far. The centrally-controlled courts have already imprisoned two political activists, resulting in huge demonstrations in Barcelona. Madrid could have arrested more politicians, but has not done so.

Common sense would dictate a dialogue between the Spanish central government and Catalan representatives. Spain is gripped by what is arguably Spain’s most serious political crisis since the death of Francisco Franco in 1975. Secessionist movements are often unwelcome. But dialogue, compromise and the resolution of differences using democratic mechanisms are always more attractive than the alternative. In the United Kingdom, the refusal by London to acknowledge the grievances of Northern Irish Catholics precipitated three decades of ethno-nationalist conflict until a negotiated solution was reached.

Spain is aware of this from its experiences of handling Basque separatism that generated over fifty years of armed conflict. The Scottish separatist movement was managed using devolution and democratic ballot: independence was peacefully averted, and Scotland has a distinctive constitutional status befitting the wishes of its residents. The aspirations of the various constituent regions of Yugoslavia for independence were managed using force; contested referenda led to violence. Managing separatism by state-sponsored violence does not have a good track record of success.

Spain is a young democracy, barely 40 years old, that has revealed authoritarian propensities and the immaturity of its institutions and politicians in managing regional aspirations for Catalan autonomy and independence. The European Union has failed Spain, by not promoting a negotiation process between the disputing parties. Any process involving dialogue and negotiation is more attractive in response to a secessionist movement than obduracy. Although the Spanish government may not have harboured the wisdom to date to understand this, the EU should have done. Rather than provide unqualified support for Spanish legal rigidity, the EU might have encouraged the Spanish central government to initiate a negotiation process.

Brussels did not do this because the prospect of new states emerging within the Union is a problem the European Union has not had to deal with before. An unresponsive and undemocratic bureaucracy composed of officials from a variety of different legal and political cultures, the EU has rarely shown itself able to adapt quickly to new challenges. The consistent message from Brussels is that the EU does not want countries within its borders to divide. National jurisdictional boundaries are apparently sacrosanct (save when they are not, as the prospect of Scottish independence, and the realities of Balkan fissures, were accepted by the EU).

Therefore Madrid’s political blunders in Catalonia were overlooked by Brussels in the name of respecting national sovereignty. This held even when Madrid used force to encroach upon European human rights norms such as democratic voting, and the actions of the Spanish police were the subject of international condemnation. But state secession is a problem that cannot be ignored. It has always happened through history. A supra-national institution such as the EU needs a framework to address this problem when it takes place within Europe.

The failures by both Spain and Brussels to respond to the Catalan independence movement through a negotiated and conciliatory process will now have predictable consequences. Civil war is unlikely. The Spanish have had enough of this in their twentieth-century history. The Catalan independence movement is peaceful. Madrid seems to be aware that there is only so much state-sponsored violence against pacifist politicians that international public opinion can tolerate. The Catalan affair is doing massive damage to Spain’s international reputation, and this will ultimately translate into economic harm. Tourists do not want to travel to conflict zones any more than banks and manufacturers want to locate their operations in them.

It now seems depressingly likely that Spain heads into a long-term low-level conflict with one of its most prosperous regions, doing damage to the economy of Catalonia, the reputation of Barcelona amongst foreign visitors and the political and legal systems of Spain. A series of tit-for-tat events will ensue. There may be parallel parliaments and governments; parallel elections; incensed protestors; occasional acts of violence; political uncertainty; flight of capital; controversies over the use of legal process to enforce the writ of central government; examples of how weak Madrid looks when it cannot enforce its injunctions; and more.

None of this is good for Spain or for Catalonia. None of it is good for the European Union either. As the crisis becomes chronic, international or independent mediation will become inevitable. The Catalan independence movement will be reinforced, its political leaders increasingly viewed as heroes, martyrs or demons depending upon the perspective of the observer. The Catalan crisis will become a long-term source of instability and resentment. Even if the conflict mostly avoids violence, Spain’s body politic will be damaged.

How did things get this way? The short answer is that Spain’s Partido Popular, now dominant in Madrid, has little representation in Catalonia and its leaders have shown insufficient foresight to appreciate that in the long term, suppressing Catalan aspirations for autonomy threatens damage to the entire Spanish state. Short-term political advantage for a struggling minority government, in appearing to adopt a firm response to Catalan independence is attractive to many other Spaniards, has proven too easy a political opportunity, just as has pursuit of simple-minded independence by Catalan politicians. Since Spain’s economic malaise began in 2008, these relatively simple political formulae have proven attractive. Spain’s young democracy has suffered a setback as a result. This may be a protean example of the mechanism by which economic decline gives rise to political extremism.

Matthew Parish is an international lawyer based in Geneva, Switzerland and a scholar of ethnic conflicts. He formerly worked as a UN peacekeeper in Bosnia and Herzegovina and as a clerk at the European Court of Justice.

This is the second in a series of articles published by Matthew Parish on the crisis in Catalonia. The first, published on 9 October 2017, was entitled “Reflection on the Catalan Condundrum” and is available by clicking here

The views expressed in this article do not necessarily reflect the views of TransConflict.


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