Understanding the

Catalan Conflict from a

Spanish Constitutional

PerspectiveDr Albert Sanchez-Graells

30 October 2017 (slides as of 15.20)

Bristol Student Law Conference Lecture Series

Agenda

• To provide an overview of the Spanish

constitutional framework applicable to the

Catalan conflict

• To place the events of Sept-Oct 2017 in

that framework

• To debunk some myths and

“sloganeering populism”

The general model

Spanish constitutional

framework—basics ISpanish Constitution of 1978 (largely unreformed since)

See G Padró i Miquel, ‘The historical roots of the Catalan crisis: How we got to where we are’, LSEEUROPP Blog, 19 Oct 2017, http://bit.ly/2yzUjjo

Spanish

constitutional

framework—basics

IIOne people, one nation, one territory -> indissoluble unity

BUT, several nationalities and strong devolution to regions, subject to solidarity

Co-official languages (where used)

See also Fact Sheet by Elcano Royal Institute, 17 October 2017, http://bit.ly/2yGes7q

Spanish

constitutional

framework—basics

IIISpain is divided in 17 Autonomous

Communities (AACC) + 2 Aut. Cities

• Statutes of Autonomy

• The Constitution foresees a

competence split between central

and autonomous governments,

which is tailored to each region by

its Statute of Autonomy

Spanish constitutional

framework—basics IVArts 148 and 149 SC1978 establish three

types of competences

• Exclusive of the State

• Susceptible of adoption by AACC

• Residual rules

Constitutional Tribunal rules on conflicts

Spanish constitutional

framework—basics V

Commonly understood as ‘suspension of Autonomy’

Untested (until now) – both as to scope and enforcement

No end-point, other than implicit restoration of the AC’s compliance with the Constitution and other laws

Current autonomy of

Catalonia within

the model

How does reality

reflect the model?The system is dynamic and there have been significant transfers of competence from the State to the AACC over time

• Catalonia started out with 89 competences in 1978 and by 2010, it had acquired a total of 274*

• Current competential status: 276[further detail in Catalan SoA]

* Marcos, Santaló & Sanchez-Graells, ‘Measuring regulatory intensity by the Spanish Regions (1978-2009)’ (2010) 4 InDret.

So how self-

governed is

Catalonia, then? (I)Maximum level of decision-making

Second-to-highest level of

competences

Infograph by El País, based on L Hooghe et al,

Measuring Regional Authority: A Postfunctionalist

Theory of Governance (Oxford, OUP, 2016)

So how self-

governed is

Catalonia, then? (II)Maximum level of legislative power

Maximum level of executive power

Infograph by El País, based on L Hooghe et al,

Measuring Regional Authority: A Postfunctionalist

Theory of Governance (Oxford, OUP, 2016)

So how self-

governed is

Catalonia, then? (III)High level of taxation powers

Moderate level of indebtedness power

Infograph by El País, based on L Hooghe et al,

Measuring Regional Authority: A Postfunctionalist

Theory of Governance (Oxford, OUP, 2016)

So how self-governed

is Catalonia, then?

(IV)The number of civil servants and public

sector employees clearly reflects the level

of self-government

Infograph by El País, based on the information in the central

human resources register of the Spanish Ministry of Finance

A long(ish) view on

current events

More Autonomy vs Independence (I)

Source: CEO 2nd wave 2017, http://bit.ly/2yypsWU

More Autonomy vs Independence (II)

So, when did things start to heat up?2006 New Statute of Autonomy

– Subject to referendum

• 2.594.167 [48.95 turnout]

• 73.2% yes [35.7% census/ 27%population]

2006 Constitutional challenge of the new SoA

2010 Shaving by the Constitutional Tribunal

2010 (planned) Catalan regional elections

2012 (snap) Catalan regional elections

‘Moderate’ Independentism?

2013 Decl. of Sovereignty & right to decide

2013 Via Catalana (Catalan Way)

2014 1st Illegal Catalan referendum (9N)

• 2,305,290 [41.6% turnout]

• 80% yes [33% census/ 30% population]

2015 (snap) Catalan regional elections

What happened in the last two months?2017 ‘Disconnection laws’

• 6/9 Self-determination Referendum Act

• 7-8/9 Legal Transition & Foundation of Republic Act

[See Martí, ‘The Catalan Self-Determination Referendum Act: A New Legal Order in Europe’, Verfassungsblog, 17 Sep 2017, http://bit.ly/2ixs68J]

2017 2nd Illegal Catalan referendum (1O)

• 2,286,217 [43% turnout]

• Claim of 770,000 votes lost

• 92% yes [38% census / 27% population]

The referendum

itselfUgly, brutal police violence scenes

However

• Major issues with reporting by the Catalan

Government itself (http://bit.ly/2gqWqgQ)

• Even bigger issues with social media and fake

news (eg use of old pics; http://bit.ly/2gdSOPN)

• Mobs against the police in their accommodation

and escraches to politicians not widely reported

Source: Avui, http://bit.ly/2xV9R4a

What (else) happened

in the last two

months?3O General strike to reject violent police activity in the

clamp-down of the vote

7O #parlem #hablamos

8O 1st Anti-independentism rally

17O Protest against the judicial decision to send Sanchez and Cuixart to prison

21O 2nd Protest asking for freedom for Cuixart and Sanchez + anti-155 decision

25O Pro-independence rally in Barcelona and student demonstrations through the week

28O Cancelled 2nd #hablamos #parlem demonstration

29O 2nd Anti-indepentism rally

Two King Speeches

3O First speech – call to stick to

Constitutional order

20O Second speech – resolve to neutralise

“unacceptable secession attempt”

• Strongly supported by speeches from

EU leaders present at the ceremony

In the meantime, away from the streets10O Declaration of Pres Puigdemont in Catalan

Parliament – Immediate suspension

11O Pres Rajoy demands clarification ex Art 155 SC1978

16O Puigdemont does not clarify position

17O Constitutional Tribunal quashes Referendum law

18O Rajoy offers exit via regional elections

19O Puigdemont does not provide any further clarification – threatens Parliamentary vote

19O Central Government activates Art 155 SC1978

21O Extraordinary Council of Ministers’ meeting

Measures proposed to Senate by Spanish GovAutonomy not suspended, measures include

• Replacing Catalan government

• Potential regional elections within 6 months

• Subjecting Catalan administration to direct ruling by Spanish central powers

• Oversight over public media (TV3)

• Catalan Parliament to continue operating, subject to direct ruling from Senate concerning new Catalan government

Catalan government’s

reaction to Art 155

DecisionRejection of decision as “worse attack on

Catalan institutions since Franco regime”

and call for debate in Catalan Parliament

Initial rejection of fresh regional elections,

and subsequent backtracking—which

triggered pressures from coalition

partners (… “they treat us as a colony”)

The ‘Art 155’ week –A tale of two Parliaments

• Mon: both Spanish Senate and Catalan Parlsestablish order of meetings

• The ‘fight’ over Wednesday and Puigdemont’s‘no show’ announcement

• Thu: ‘In extremis’ written submission to Senate Commission, rumours of snap Catalan elections—postponed and eventually cancelled

• Fri: vote on declaration of independence in plenary session at Catalan Parliament, and approval of Art 155 at plenary session of Spanish Senate within the hour

The #fakeDUI

Approved by 70/135 votes, with over

50 MPs having abandoned the

plenary in protest

Significant concerns about the

process (secretive but not secret)

and the content of the vote, but

clear act of disobedience regardless

Approval of #Art155

214/266 votes, with 47 nays and 1 abstention

Introduced tweaks on measures proposed by

Spanish Government – most significantly, no

oversight/intervetion of Catalan public media*

‘Lightspeed’ publication in Spanish Official

Gazzette

International

reactionSource: Diari Ara,28 Oct 2017, http://bit.ly/2ieJtYa

Does the constitutional framework help us make sense of this mess?Why the Central Government act the way it did?

Why did the Catalan Government act the way it did?

Why did the King act the way he did?

Criminal law

ramifications

Criminal law

ramificationsWhy are there so many (so few) criminal

investigations going on?

How are these criminal cases affecting

political developments?

9N (2014)

24 months due to aggravated disobedience

coupled with illegal expenditure of public funds (€5.2mn), currently being dealt with by the Spanish Court of Auditors

Now, what?

Everybody’s guess

The surprisingly quiet weekend

No major events on Saturday

Recorded video of Mr Puigdemont on Sat

Newspaper column of Mr Junqueras on Sun

A choice of business as usual vs dirty tricks from exile?

Some sacked members of Catalan

Gov appeared for work on Monday

Catalan Parliament accepted

disbandment and stopped activity

Mr Puigdemont and 5 others travel to

Brussels via Marseille (amidst

rumours of asylum applications)

Now, what?

Immediate developments in context of

criminal law cases likely to be problematic

and potentially give rise to civic unrest

Quo vadis Article 155 SC1978?

New regional elections to be held on

21 Dec 2017

What may new

elections bring?Extremely difficult to forecast but, if

no surprises, likely to repeat 2015

results – but a break up of the

autonomist/independentist front

Could political parties be illegalised?

How big a backlash would that create?

Q&A