I began a still ongoing love affair with Spain when I was 19. It started one night in a 2nd class train compartment in August 1981. I was travelling from Paris to Madrid to begin my year of study abroad, and the Guardia Civil stormed in after midnight at the French-Spanish border demanding passports. I somehow found this whole scene romantic. I also recall joyously poking my head out of the train window at dawn as the Spanish landscape flew by, drenched in that wonderful saffron hue that seems to only be part of the color spectrum of Spanish sunrises. When I arrived in Madrid, I was young, without much life experience, and my classroom Spanish bore no trace of the Castilian accent that I would later acquire. During the next ten months, I ventured to almost every corner of Spain—living life to the fullest, a willing participant in what Spaniards now nostalgically refer to as La Movida. I was hooked.
As much as I was enjoying my foray into Spanish culture, however, I became acutely aware that there were disconcerting undercurrents flowing beneath the surface of Spanish society. Spain’s democracy at that time was young and fragile, and the rule of law tenuous; the nation had just emerged from the Franco dictatorship (1939-1975), and the country’s 1978 Constitution was less than three years old when I landed in Madrid. Lieutenant Colonel Antonio Tejero had briefly commandeered Spain’s Congress of Deputies with a pistol just six months before my arrival. One month after I started classes, Pablo Picasso’s politically charged painting, Guernica, returned to Spain from the U.S. (Picasso had mandated that his masterpiece not be brought back to Spain until democracy was restored in his homeland). The Guardia Civil escorted the piece from the Madrid airport, and it was then displayed behind bulletproof glass in a building just three blocks from my apartment. Many Spaniards wondered if the painting’s homecoming was premature.
As I personally witnessed, the early post-Franco years tested the strength and overall viability of Spain’s emerging democracy, and its newly-minted constitutional and institutional framework. That framework is again being challenged, almost 40 years later, in the streets of Catalonia. Although Catalonians have always demonstrated a striking sense of autonomy (and have vied for independence before), the tension between this intensely proud northeastern region and the Spanish central government has reached a critical point.
On October 27, the Parlament de Catalunya approved a unilateral Declaration of Independence, which prompted the Spanish Prime Minister, Mariano Rajoy, to sack members of the Government of Catalonia. Mr. Rajoy also dissolved the 135-member Parliament, and set new regional elections for December 21. And for the first time since the popular approval of the 1978 Constitution, the Spanish government invoked Article 155 –the “nuclear option”–which empowers it (upon approval of the Senate) to “take all measures necessary” if an autonomous community “acts in a way that is seriously prejudicial to the general interest of Spain.” Armed with Article 155, the Rajoy administration retracted Catalonia’s devolved powers and imposed direct rule. Reports yesterday morning (October 30) indicate that some of the deposed members of the Catalonian government, including Carles Puigdemont, have fled to Brussels to escape sedition charges.
Whether Catalonia’s unique regional attributes, including its language, warrant such an arduous and punishing attempt at nationhood, I can’t say. What I can say, however, is that the Catalonian government’s recent efforts to pave the way to independence have been illegal under current Spanish law. For years, Mr. Rajoy’s Partido Popular, the two Rajoy administrations, and the Catalonian government have been fighting in the Constitutional Court over the validity of “right to decide” legislation. And for years, the Constitutional Court has determined those regional laws are unconstitutional. This holding from the Court’s December 2, 2015 judgment (on Catalonia’s Resolution 1/XI) perhaps sums up the Court’s jurisprudence most suitably: “An Autonomous Community’s Parliament cannot set itself up as a source of legal and political legitimacy, unlawfully taking matters into its own hands in order to violate the constitutional system on which its own authority is based.”
The Constitutional Court was no different in its approach to the Rajoy government’s challenge to Law 19/2017 (September 6, 2017), which set the stage for Catalonia’s controversial Oct. 1 Referendum on Self-Determination. After suspending the Law on September 8, the Court ultimately struck it down in a unanimous October 17 decision, effectively voiding the October 1 vote. As reported by El País on Oct. 17, the Court opined that the Law “‘encroaches upon state powers on referendum-type consultations, and violates the supremacy of the Constitution, national sovereignty and the indissoluble unity of the Spanish nation.’” As the Court noted, under the Spanish Constitution (Article 92.1), “referendums may only be held at the national, not regional, levels” (El País, Oct. 17). The opinion also addressed the Parliament of Catalonia’s attempt to legitimize the Referendum based on “international legislation and jurisprudence” (Law 19/2017). The Court didn’t buy that argument either. The idea that international law applies in Catalonia’s case has also been debunked by numerous international and Spanish scholars, including the Spanish Association of Professors of International Law and International Relations.
The fact of the matter is that the Catalonian secessionists don’t have the law on their side. Almost 40 years ago, Catalonians themselves signed on to a Constitution that is “based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards” (Article 2), and as confirmed by the Constitutional Court, does not sanction a regional plebiscite on independence. Nor does the Constitution allow an autonomous community, such as Catalonia, to unilaterally declare independence, as it did on Friday.
For the moment, at least, it appears that Mr. Rajoy’s administration has bought some time by calling for early elections. With some of the hard-core secessionist politicians “out of town,” citizens of Catalonia will hopefully have a chance to sort things out politically and select a new Parliament—its composition representing a current and accurate picture of what the majority of Catalonians want. (According to CNN, “A new poll suggests that political parties backing independence would not win a majority if elections were held today” (October 30, 2017)). That is not to say, however, that the 1978 Constitution itself does not need to be tweaked to prevent a crisis like this from occurring again.
As a devout Hispanophile, watching this drama unfold has been heartbreaking. The crisis is tearing the country apart, and it’s damaging Catalonia’s economy, as businesses flee and tourists stay away. Whatever the next few weeks and months bring, Spain does not need to move backwards; Picasso’s Guernica is finally on display now in Madrid unshielded. It is time for the country’s politicians to work together to compromise and utilize the law and its malleability to ensure that the nation continues to move forward.