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21 d’oct. 2017

Their 155 can end up backfiring in their face


Legal analysis by Marcel Mateu, professor of Constitutional Law: "To put into operation some of these measures would require various complicities that they may not necessarily manage to achieve"

President Rajoy's government has decided to completely liquidate the autonomy of Catalonia and has approved another New Scheme Decree (Nueva Planta, the 1716 decree) making itself a custom-built article 155. It has given itself a blank check, ignoring the Constitution and the Statute of Autonomy of Catalonia. The PP Government, with the complicity of the PSOE and Ciudadanos, has radically destroyed the autonomous system unilaterally, changing some of the pillars that held up the autonomous edifice, and eliminating what little political autonomy remained. For, in actual fact, a few weeks ago, under the euphemism of the economic intervention of the Generalitat, the political character of autonomy had received a death-blow, and now they have put it out of its misery, twisting article 155 of the Constitution to make it say what it literally does not say.

Article 155 allows the government to "give instructions" to all authorities of the autonomous communities (which is enough in itself!), but does not exempt it from complying with the law, and therefore the measures that are taken and the instructions that are given may not contradict the law. And all the measures that the Cabinet has agreed, all of them, directly violate the Statute of Autonomy of Catalonia ("EAC", which is an organic law of the State). The Statute lays down that the president of the Generalitat can only be elected by the Parliament, from among its members (article 67.2) and the causes of his or her replacement (art. 67.7) do not include his or her dismissal by the political decision of the Spanish prime minister, not even with the endorsement of the Senate. T
he appointment and dismissal of the rest of the members of the Government is only up to the President of the Generalitat to decide (article 17.1 of Law 13/2008). The early dissolution of the Parliament and the consequent election call is a political decision that the Statute attributes to the exclusive prerrogative of the President (art. 75), an indelegable power, because it is the very personal power of the President of the Generalitat. No-one else can exercise this attribution, and the Statute explicitly states that even in extreme cases in which the president were to die or be barred from office on a criminal conviction, the person replacing him or her temporarily (the Vice President) could not dissolve Parliament (Article 67.8) for, in such cases, Parliament would have to elect another President from its membership. Only the Catalan Government can direct the Administration of the Generalitat (article 68.1 EAC). In accordance with the Statute that has been liquidated today, the Spanish Government had no right to veto the Parliament's activity: its legislative, budgetary or political control powers (art. 55.2). These are just a few examples, but the same could be said about the command of the Mossos d'Esquadra or the direction of the public audiovisual communication media, to illustrate that what the Government of Spain has done today is a messy reform of the Statute, bypassing the procedures laid down in the Statute (arts 222 and 223).

Now, these measures agreed upon by the Spanish government, once approved by the Senate, will have to be applied. But to implement some of these measures, a number of complicities would be needed, and they may not necessarily be achieveable, such as that of most of the civil servants of Catalonia's administration. Moreover, with a massive and perseverant response from Catalan citizens, some of these measures will not be able to be applied effectively and this may make clear that the Spanish government no longer has control over Catalan territory. It can be made evident internationally that the Spanish State, in fact, can no longer exercise a sovereign power in Catalonia. The whole business could thus end up backfiring in their face.

The decision of the Spanish government to apply article 155 of the Constitution and to do so in such a clearly illegal and unconstitutional way leaves
the Parliament of Catalonia with a single dignified solution: to make a formal declaration of independence (which is what the Law of the Self-determination Referendum stipulates), which automatically means two things: that the law that will act as a provisional constitution of Catalonia (the Transitional and Foundational Law of the Republic) will enter into force and that the constituent process must begin. Within six months.

This is not the first time the Spanish government and other state agencies assert that they defend the law and the Constitution but flout them clumsily or violate them flagrantly. The latest example is the imprisonment of the two Jordis [presidents of the two main pro-independence NGOs]. But today the government of Rajoy has definitely bulldozed the master wall not only of the autonomous system but of the Rule of Law and therefore of the Spanish democracy. When the edifice falls, we need to be outside it.

Marcel Mateu, professor of constitutional law at the UOC.

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