Reflection on the Catalan conundrum

Reflection on the Catalan conundrum

Whether or not the Spanish state missteps further in an attempted occupation of Catalonia, the political geography of Spain now seems destined to be permanently transformed. The international community, and in particular the European Union, must support all Spaniards in ensuring that this process takes place with minimum political and economic damage to the Euro zone’s fourth-largest member.

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By Matthew Parish

On 1 October 2017 the Generalitat, the government of the autonomous province of Catalonia in northeastern Spain, held a referendum of its citizens upon whether they wanted to the region to become an independent state. It was not the first time such a vote had been held. A similar referendum had been held in November 2014, but it had not acquired nearly so much international attention.

The distinguishing feature of the October 2017 referendum was the determination by Spain’s central government to prevent it from taking place by every means at its disposal. The Spanish Prime Minister Mariano Rajoy declared the referendum illegal. His political party, the Partido Popular that presides over a minority government in Spain’s parliament the Cortes Generales, applied to the Spanish courts to obtain injunctions prohibiting the referendum on the basis of prima facie unclear constitutional provisions declaring the “indissoluble unity of the Spanish nation”. Such a legal rule says nothing about the fundamental human right of citizens in a democracy to vote.

Spain’s central government then sent national paramilitary police in riot gear to Catalonia in an attempt physically to prevent the referendum from happening. The measures these forces undertook included confiscation of ballot boxes; occupation of Google’s local offices hoping to stop voters finding polling stations using the internet; dragging female voters out of polling stations by their hair; beating elderly and unarmed people; firing potentially lethal plastic bullets into crowds; arresting public officials involved in the ballot; physical confrontations with the local Catalan Police (the Mossos d’Esquadra) who mostly declined to cooperate; smashing the doors and windows of polling stations with axes; charging crowds; seizing ballot papers; and more. The greater part of 1,000 people were reported injured as a result of national police actions. Normally the national police have no role in Catalonia; the Mossos have de facto exclusive jurisdiction. The Catalans perceived an occupying force.

These scenes were beamed around the world by international journalists. Yet the attempt by the central Spanish government to prevent the referendum from proceeding was mostly ineffective. Despite an estimated 9,000 national police officers being deployed with instructions to stop voting, it was reported that only 92 of some 2,315 designated polling stations in a region of some 7.5 million people were closed as a result. Although Police raided the polling station at which the Catalan President Carles Puigdemont was expected to vote, he escaped the raid by evading a Police helicopter through switching cars under a bridge and voting at a different polling station. The organisers of the referendum were innovative and determined.

The brutality of these events captured the attention of the international media in a way the 2014 referendum never did, despite lawsuits initiated by the Spanish central government that led to the principal politician organising the earlier referendum, Artur Mass, being disqualified by a Court from politics for two years. In public statements subsequently made by the Prime Minister and the King of Spain in response to the 2017 referendum, no regret, sympathy or compassion was offered to the Catalan people. Rather the steadfast position was consistently adopted that the constitution prohibited any referendum and the national police, including their militarised wing, had acted properly in seeking to prevent the ballot by using violence against unarmed civilians. Nevertheless the vote took place. Some 2.2 million people, amounting to more than 42% of the electoral population of Catalonia, were said to have participated. The “yes” vote was reported to be over 90%.

These events beg the question why the Spanish central government acted as it did. At least two alternative courses of action were open. One was mostly to ignore the referendum, as in 2014, thereby relegating it to political insignificance and defusing its international impact. The other would have been to welcome the referendum and participate with a view to winning it, as was the successful approach of the British central government in the Scottish independence referendum of 2014. The latter course might have been particularly attractive given that opinion polls suggest a clear majority of Catalans then preferred allegiance to Spain. The Spanish government adopted neither of these courses. Instead it relied upon constitutional provisions that are less than a paradigm of clarity to obtain court orders of dubious logic that mandated the use of state force to prevent democratic process. Now the head of the Mossos is under investigation by a Judge in Madrid for the medieval crime of sedition, for failing to instruct his officers to participate in this exercise with sufficient vigour.

It is hard for any person outside Catalonia to form a reasoned view about whether Catalans have a strong case for independence from Spain. That is for the Catalans to decide. Nevertheless Catalans have grievances. They complain of paying excessive tax revenues into central coffers. They cite frustration over a political process supposed to grant them progressive self-rule but which failed to meet their aspirations. A 2006 legislative instrument prescribing redrawn conditions of Catalan autonomy from the Spanish central government, approved by the Catalan parliament, the Spanish central parliament and the Catalan people in a referendum, was subsequently in substantial part struck down by the Spanish Constitutional Court in 2010 pursuant to a lawsuit filed by the Partido Popular. The legal procedure leading to this result was unusual and even Byzantine. It is often thought that this action of the Constitutional Court was the principal catalyst for the contemporary Catalan independence movement, which previously had never acquired majority support amongst the Catalan population.

Where regions with distinctive identities have grievances against central government within a democratic system, political compromise prescribes that those grievances be addressed. Otherwise they will fester. The Spanish government has relied upon inchoate constitutional principles to justify its hardline stance. It says that Spanish domestic law prohibits the referendum the Catalans elected to organise. Resort to such rigorous legalism cannot be a definitive solution to malleable political conflicts. Construal of domestic law to criminalise a democratic referendum was invented by the Spanish Constitutional Court, inconsistently with prevailing European democratic norms. This is precisely the Tribunal Catalans felt had let them down in 2010. Secession of territories and the emergence of new states typically takes place outside the framework of domestic law. It is frequently justified by reference to supervening principles of International law that the Spanish state has not seen fit to consider. One example is the independence of Kosovo, a controversial event that took place entirely without regard for the auspices of the laws or constitution of the Republic of Serbia but nonetheless had the support of many western democratic states that now stay mostly silent on the Catalan referendum.

Where there is democratic will to pursue a plebiscite on so fundamental an issue as the territorial and political integrity of a state, it is a scant response to say that domestic law does not permit such a vote to take place. The deployment of violence by government forces to prevent peaceful people from using the ballot box Is horrifying. It engages the norms of international human rights law. That is more important than domestic principles of territorial unity that inevitably evolve amidst changing political winds. There are no absolutes in constitutional law. The way states govern themselves changes. Legal documents cannot be pronounced immutable.

This gives rise to the question of why the Spanish government acted as it did. Authoritarianism was the least attractive option in response to the challenge of a disaffected region with acknowledged economic superiority. This was particularly so given that the Spanish government had the advantage of knowing that most Catalan citizens did not want the sovereignty the referendum proposed.

Had police violence not been engaged, it would have been a reasonable supposition that a silent majority of Catalans would have participated in the referendum and in all possibility defeated it. The acts of Madrid become increasingly bewildering viewed through any rational lens. This discomfort is compounded by the uncompromising terms of a rare speech delivered by the Spanish King shortly after the referendum, that followed the central government line without dissent. It was notable for the abject absence of regret for state violence. Catalans did not consider this conciliatory.

To understand the dynamic of the contemporary crisis in Spanish politics, it may be important to explore carefully twentieth century Spanish history so as to understand how Spain arrived at her current impasse. The Partido Popular is almost singular in its uncompromising aversion to Catalan aspirations for autonomy. That much is clear from the party’s decision to challenge the 2006 Catalan Statute of Autonomy before conservative justices of Spain’s Constitutional Court. That statute had been negotiated by a socialist government, now in retreat and opposition since Spain’s left-wing vote has been split between the Socialist Workers’ Party and the insurgent politics of Spain’s new political grouping Podemos since elections in 2015. The Catalan autonomy debate is closely linked with the vicissitudes of domestic Spanish politics. The Partido Popular is not popular in Catalonia. One inference might be that when Spanish politics swings to the right, the emphasis from Madrid coalesces around repression of desires for Catalan autonomy rather than accommodation of them.

Why might this be? Catalonia is an economic success story, and it is intuitively surprising that an economically liberal political party might not attract substantial support in one of Spain’s wealthiest areas. To understand why Catalan politics are unsympathetic to Rajoy, it may be useful to delve into a darker aspect of Spain’s recent history. The political grouping that developed into the contemporary Partido Popular was founded by a Minister of the Interior under Francisco Franco. Franco ruled Spain as a military dictator from 1939 to his death in 1975, following victory by his Falange (fascist) movement over the Republicans during Spain’s Civil War. Amongst the very last strategic corners of Spain to fall to Falangist dictatorship was Catalonia in 1939, that held out for the Republican cause until the very end. The price paid by Catalonia for its intransigence to fascism was substantial. The President of Catalonia was tortured, beaten and executed. Thousands of Catalans were murdered in retribution. The Generalitat was abolished. The Catalan language was suppressed.

The Socialist Workers Party, which claims historical lineage from the Republicans fighting against Falangism, has been more amenable to Catalonia’s aspirations for autonomy. Madrid’s use of the Guardia Civil, Spain’s military police, to foreclose peaceful voting in the 2017 referendum evokes fear in the population of Catalonia. The historical ancestors of the Guardia Civil were Franco’s feared Policia Armada, whose mandate included “repression where deemed necessary”. Historical fault lines are being redrawn.

Spain is a particularly young democracy by European standards. Her democratic experiment began gradually after Franco’s death in 1975. The country’s first post-Falangist elections took place in June 1977. There was a coup d’état attempt in support of Francoism, orchestrated by elements of the Guardia Civil, in February 1981. Spain’s much-admired first post-Franco prime minister Adolfo Suarez resigned from his party rather than let it be merged with the predecessor to the Partido Popular under his watch. It is impossible to understand contemporary Catalan angst about the current composition of the central Spanish government without acknowledging the shadows cast by Spain’s recent past.

Spain has a complex history of authoritarianism and resistance, and understanding these currents may be important in placating Catalan grievances that are driving the region’s current movement for independence. A historical analogue might be drawn with the Ten Years’ War between Spain and Cuba, Spain’s erstwhile colony, that began in 1868. Cuban aspirations for sovereignty apart from Spain were met by a Spanish crackdown leading to an extended and bloody conflict that served nobody’s interests. This collision was ultimately resolved only by US usurpation of Spain as the colonial power in Cuba in 1899. While Spain tentatively prospers as a contemporary European democracy, dogmatic strains in the country’s political culture persist. Given the quest by Catalan politicians for independence, the intransigence of the Spanish state remains of concern. Not least this obduracy might impact the tentative Basque peace settlement in the north, by which a violent insurgent group disarmed in exchange for a devolution of power to an extent not so far accorded to the Catalans.

In failing to prevent the referendum, the Spanish state has already shown that it cannot credibly occupy Catalonia. Therefore it cannot exercise its ostensible constitutional prerogative, now threatened, to replace the Catalan regional government with officials of the central administration. Madrid has insufficient bureaucrats, judges, police or legislators to adopt the ultimate remedy of civil occupation over its errant province with any prospect of medium to long-term success. Yet the Partido Popular may try. If it does then this will be indicative of areturn to authoritarianism within Spain and the results will be unpredictable. All people who wish Spain well must pray that such an attempt is not made.

Central government occupation of Catalonia could only be undertaken by the Spanish army, which is estimated to have a personnel strength of perhaps 75,000 but of which only a fraction are available at any one time. (Contrast this with a Mossos d’Esquadra force, presumed loyal to Catalan regional government, of almost 17,000.) The costs of occupation would be colossal: to deploy fewer than 4,000 Spanish troops on current international missions is estimated to cost almost 800 million Euros per year. The military cannot undertake bureaucratic functions. Replacing Catalonia’s sophisticated civil government structure with agents loyal to Madrid cannot be a military prerogative. Any attempt by the Spanish state to revoke Catalonia’s self-governing status in response to threats or acts of purported secession could only generate catastrophe.

Whether or not the Spanish state missteps further in an attempted occupation of Catalonia, the political geography of Spain now seems destined to be permanently transformed. The international community, and in particular the European Union, must support all Spaniards in ensuring that this process takes place with minimum political and economic damage to the Euro zone’s fourth-largest member. All those who love Spain and the Spaniards, as well as all those who wish the European Union well, must now engage with the Catalan problem. The consequences of failure to do so are too significant to overlook.

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.

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

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