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REPORT
BY OBSERVATORI GARANTIES
DEMOCRÀTIQUES
Luis
Remiro
Erick
Alvarez
Summary
Introduction:
the conflict between legitimacy and constitutional legality is the
origin of the problem 3
Section
I: Timeline of the process 6
1.
Background
6
a. Judgment
of the Constitutional Court on the Statute of Autonomy of Catalonia
6
b.
Consultation
of November 9, 2014 7
c.
The
mandate of the elections to the Parliament of 2015 11
2.
From 9-N to 1-O 12
a.
Convocatoria
del ReferéndumCall of the Referendum 12
b.
Disconnection
Laws 13
c.
Law
of the Self-Determination Referendum 15
d.
Legal
and Foundational Transitory Law of the Republic 16
e.
Electoral
Board
of Catalonia 18
f.
Impediment
of the Right to Vote 19
g.
The
referendum on October 1 20
3.
The
declaration of independence 23
a.
Initiatives
for dialogue and mediation 23
b.
The
October 10 Declaration 25
c.
The
Declaration of Independence of October 27 27
4.
Suspension
of autonomy through article 155 30
5.
21
D Elections 33
a.
Electoral
campaign 34
b.
Election
day, vote from abroad and results 36
Section
II: Analytical vision of democratic quality 39
1.
The overseas vote 39
2.
Media
coverage of the
Procés
42
3.
The
role of civil society and its mobilization 47
4.
Political
polarization 50
a.
Behavior
and discourse of political parties 52
b.
Parties
and political environment in Catalonia 52
c.
Political
violence, repression and protests 53
d.
Emprisoned
politicians
or political prisoners? 55
5.
An
explanation of the judicialization of politics 58
a.
Crimes
of rebellion and sedition, impediment of investiture and fundamental
rights 60
b.
Observations
on judicial independence, civil rights and freedoms 62
Section
III: Conclusions and proposals 64
1.
Democratic
quality balance 65
2.
Proposals
of the Observatory for the improvement of democratic quality in
Catalonia 67
3.
Conclusions
69
References
70
Introduction:
the conflict between legitimacy and constitutional legality is the
origin of the problem
Ai,
ditxosa Catalunya! begins the popular
song that recounts the revolt of the reapers in the seventeenth
century, warning about
the conflict of political legitimacy that were coming and their
consequences. Legitimacy conflicts are
recurrent in the history of Catalonia since the death of King Martí
l'Humà. Civil wars and invasions that
altered its political constitution took
place one after another (against Joan II,
Reapers, Succession, Napoleonic
period, various
proclamations of the Federal Republic in Barcelona, Franco’s
uprising...). At present, Catalonia is the
centre of
political attention in Spain and throughout Europe on
account of a new problem of political
legitimacy.
The Catalan secessionist process aims to change the unity of the State through democratic means. In general, these demands arise from the perception among part of the population of the lack of substantial options that Catalonia has to govern itself or to make its voice heard in collective decision-making in Spain. The 1978 Spanish Constitution configures a "single" and "indivisible" state that concentrates power at a central level despite recognizing the autonomy of the communities that comprise it. According to this vision, the constitutional status quo leaves the Catalans as a structural minority whose members find themselves in a situation of inequality to influence the policies that affect them. Although the pro-independence discourse is complex and multifaceted, there is a recurrent aspect in practically all the justifications for secession: Catalonia lacks institutional mechanisms to govern itself in areas such as taxation, immigration and social policies (Kraus, 2017).
The effects of the 2008 economic crisis in Spain and the Constitutional Court Judgment 31/2010, which repealed a significant part of the Statute of Autonomy of Catalonia (EAC), having been approved by three legislative bodies and ratified by referendum, can be taken as the catalyst that transformed a feeling of impotence into a cycle of protest that has ended up opening a debate about the functioning of the democratic system in the Spanish State.
The holding of the referendum on October 1, which culminated in police charges and hundreds of wounded, and the arrest of pro-independence leaders have served as proof of democratic stress for the Spanish political system, which has demonstrated shortcomings in the guarantees of fundamental rights.
In this whole issue we find the principle of legality confronted with the principle of legitimacy. This debate is transversal in this report, where we approach the question of Catalonia, not from the normative or tautological point of view, but from a political and sociological vision.
Legitimacy is the support of all regimes, be they democratic, monarchical or authoritarian . We refer to the support that goes from the actors to the authorities and, in a more diffuse way, to the Public Administration, which leads to the approval of the performance, the support to the principles of the regime and feelings of identification with the nation-state, such as maximum abstract level (Martini & Torcal, 2016; Norris, 2013) .
Laws are the formalization of behaviours and conventions, and portray the power relations and dominant values of the elites that write and apply them. Although the principle of legality is fundamental for the maintenance of the rule of law, we must understand that in any democratic system laws, and in particular rigid laws, do not always manage to adapt to new demands and values that emerge from society. If the institutions do not respond to these demands, feelings of disaffection and distrust towards the authorities are created, which culminates in the loss of legitimacy, in the rupture of social cohesion and, finally, in conflicts.
There have to be mechanisms to respond to citizen demands and, in particular, those that arise from the sector opposed to the ruling elite, because democracy is based on public trust in institutions, from which it derives its legitimacy. So, to begin with, certain faculties and rights must be guaranteed, such as freely accessing information, voting without constrictions, participating in debates and expressing opinions in conditions of equality and in an environment of mutual respect, without fear of reprisals or violence.
The Catalan secessionist process aims to change the unity of the State through democratic means. In general, these demands arise from the perception among part of the population of the lack of substantial options that Catalonia has to govern itself or to make its voice heard in collective decision-making in Spain. The 1978 Spanish Constitution configures a "single" and "indivisible" state that concentrates power at a central level despite recognizing the autonomy of the communities that comprise it. According to this vision, the constitutional status quo leaves the Catalans as a structural minority whose members find themselves in a situation of inequality to influence the policies that affect them. Although the pro-independence discourse is complex and multifaceted, there is a recurrent aspect in practically all the justifications for secession: Catalonia lacks institutional mechanisms to govern itself in areas such as taxation, immigration and social policies (Kraus, 2017).
The effects of the 2008 economic crisis in Spain and the Constitutional Court Judgment 31/2010, which repealed a significant part of the Statute of Autonomy of Catalonia (EAC), having been approved by three legislative bodies and ratified by referendum, can be taken as the catalyst that transformed a feeling of impotence into a cycle of protest that has ended up opening a debate about the functioning of the democratic system in the Spanish State.
The holding of the referendum on October 1, which culminated in police charges and hundreds of wounded, and the arrest of pro-independence leaders have served as proof of democratic stress for the Spanish political system, which has demonstrated shortcomings in the guarantees of fundamental rights.
In this whole issue we find the principle of legality confronted with the principle of legitimacy. This debate is transversal in this report, where we approach the question of Catalonia, not from the normative or tautological point of view, but from a political and sociological vision.
Legitimacy is the support of all regimes, be they democratic, monarchical or authoritarian . We refer to the support that goes from the actors to the authorities and, in a more diffuse way, to the Public Administration, which leads to the approval of the performance, the support to the principles of the regime and feelings of identification with the nation-state, such as maximum abstract level (Martini & Torcal, 2016; Norris, 2013) .
Laws are the formalization of behaviours and conventions, and portray the power relations and dominant values of the elites that write and apply them. Although the principle of legality is fundamental for the maintenance of the rule of law, we must understand that in any democratic system laws, and in particular rigid laws, do not always manage to adapt to new demands and values that emerge from society. If the institutions do not respond to these demands, feelings of disaffection and distrust towards the authorities are created, which culminates in the loss of legitimacy, in the rupture of social cohesion and, finally, in conflicts.
There have to be mechanisms to respond to citizen demands and, in particular, those that arise from the sector opposed to the ruling elite, because democracy is based on public trust in institutions, from which it derives its legitimacy. So, to begin with, certain faculties and rights must be guaranteed, such as freely accessing information, voting without constrictions, participating in debates and expressing opinions in conditions of equality and in an environment of mutual respect, without fear of reprisals or violence.
Given the
strength and vitality of Catalan society, external observers may find
the will to independence exaggerated. However,
as we will review in the report, the reasons for this movement are
legitimate. It is necessary to highlight
the great weight of civil society actors, such as the Catalan
National Assembly (ANC), Òmnium Cultural (OC) or Súmate, in the
articulation of the independence agenda. Unlike
Quebec or Scotland, where the search for sovereignty was primarily
motorized by the independence parties (the Scottish National Party in
Scotland and the Parti Québécois in Quebec), the beginning of the
Catalan sovereignty process in 2010 was the result of civil
mobilization rather than strategies drawn up by the political
elites.
It is a
complex movement since the political organizations that support the
independence cause cover a remarkably broad ideological spectrum,
from the PDeCAT, positioned partly in the center right, to the CUP in
the far left. Its plural nature provides
the movement with a high level of social legitimacy (Kraus,
2017). And no
less complex and transversal are the opposing movements or those that
propose federal-type alternatives.
In this
document we deal descriptively and analytically with all relevant
relationships and circumstances and the characterization of the
Catalan sovereignty process. The report is
divided into two sections: the first chronologically describes the
most important events, from Judgment 31/2010 of the Constitutional
Court to the post-electoral scenario of December 21, 2017. In the
second section,
it analyzes certain elements present in the system politician of
Catalonia and its relationship with the Spanish State, the conflict,
the political parties, the judicialization of politics and material
aspects such as the media and the overseas vote. Finally,
we took stock of the entire process and presented the Observatory's
proposals to political and institutional agents to improve the
democratic quality of political processes in Catalonia.
Judgment 31/2010 of the Constitutional Court (CC), of June 28, 2010,
was
a watershed.
The
ruling is
the result of the
appeal filed by 99 deputies from the Popular Party, who came to
collect millions of signatures throughout Spain, against Organic Law
6/2006, of July 19, on the Reform of the Statute of Autonomy of
Catalonia
[1],
arguing that it was a fraudulent way to push for a Constitutional
reform [2],
which also involved the modification and
breakage of the Spanish State.
The proposed Statute was approved by the Parliament of Catalonia on
September 30, 2005, with 120 votes in favour and 15 against. During
its passage
through the
Cortes it underwent severe modifications, but, finally, it was
to
be endorsed in popular consultation on June 18, 2006, with the
participation of 5,309,767 Catalans (108,024 residents abroad), 49.4%
of the electoral census . Of these, 73.9% voted in favour and 20.7%
voted against [3].
The reform
of the EAC, the first since its approval in 1979, sought to adapt the
autonomous regulatory framework to the new needs of Catalan society
and the European reality and to protect the powers of autonomous
government from a growing trend towards recentralization. The content
proposed by the Parlament defined Catalonia as a nation and the
Catalan people as a legal subject; it consolidated the linguistic
policy with Catalan as a vehicular language and of learning in
education; it reinforced the powers of the Generalitat and
established a decentralized Catalan justice system of the General
Council of the Judiciary and laid the foundations of a new fiscal
system, increasing the collection capacity of the Catalan authorities
and providing them with new financial powers (Kraus, 2017) .
It was the
first time that a Statute was reformed without consensus of the two
major political forces at the state level. That, coupled with
political pressures and the media, made the approval process of the
EAC stained with political unrest. For his part, the electoral
promise of President José Luis Rodríguez Zapatero to approve a new
Catalan statute, put him under pressure.
The ruling
stated that 14 articles were totally or partially unconstitutional
and indicated the narrow interpretation that should be applied to 30
additional article s, including all the points discussed above. By
not considering Catalonia as a nation in a political or legal sense,
or the Catalan people as a legal subject, the Statute's legitimacy
did not emanate from it, but from the Spanish Constitution. The
impact was enormous, not so much because it annulled a large number
of article s, but because it practically emptied it of a political
meaning and because it generated problems of legitimacy.
The
project that reached the Constitutional court was the result of the
work of two legislative bodies elected by universal suffrage plus the
Senate, and then ratified via referendum, so that the text already
had the support of the original power, expression of popular will.
The procedural maneuvers of the appellants, such as the recusal of
Judge Pablo Pérez Tremps and the attempt to prevent the extension of
the mandate of the CC president María Emilia Casas,
strengthened the idea that it was intended to pre-condition the
ruling by manipulating the composition of the Court.
This judgment placed the principles of legality and legitimacy on a level
of confrontation. On the one hand, legal positivism, which feed the
language of the courts and builds the rule of law and on the other,
the majority will in Catalonia, based on democratic radicalism. This
confrontation has already had consequences in the social
delegitimization and discrediting the performance of the CC, which is
serious for democratic institutions. Judgment 31/2010 meant an
imbalance in the democratic balance, and motivated Catalan sobiranism
to bet on the independence of Catalonia. .
The CC judgment was a blow to the Catalan political project and
shocked Catalan society.
The
immediate response was the first mass demonstration, on
July
10, 2010 under the motto "We are a nation, we decide",
promoted by OC. However, the mobilizations were only the visible
layer of a conflict with multiple dimensions and deeper
repercussions.
The
second impact was in the elections to the Parlament of November 2010.
The President of the Generalitat, José Montilla, and his party, the
Socialist Party of Catalonia (PSC), which already came with a
management worn out by the implementation of the declared cuts by the
Zapatero Government, they ran out of their main political offer: the
development of the Statute. The tripartite was to be buried
[4],
because not only the PSC but Esquerra Republicana de Catalunya (ERC)
and Iniciativa per Catalunya Verds (ICV) would lose seats, giving the
victory to the nationalist candidacy Convergència i Unió (CiU), of
Artur Mas, who approached the absolute majority
[5]
in
elections where territorial discourse and local crisis prevailed over
classical ideological preferences
[6].
Mas's
goal on reaching the Presidency of the Generalitat was a new fiscal
pact with the Spanish Government to, if not resolve, at least reduce
the conflict. The proposal, developed and approved by the Parlament
in July 2012, had massive popular support in Catalonia
[7]
but
found the refusal of the newly elected Spanish prime minister,
Mariano Rajoy (PP).
The
unwillingness of the central government to reconcile the aspirations
coming
from
Catalonia entailed nationalist sectors, such as CiU, to take
independentist positions and the independentists themselves to defend
the separation of Spain as the only possible way to solve the crisis.
In
this way, the will was emphasized that the people of Catalonia will
determine their collective future freely and democratically through a
consultation, a proposal that was
to be
ratified after the pro-independence
movement’s first
victory at
the ballot boxes in
the snap
elections
to Parliament in November 2012
[8]. There
was a precedent.
Between
2009 and 2011 about half of the municipalities of Catalonia had
already held unofficial consultations on independence
(Muñoz
& Guinjoan, 2013)
.
The parties
of the independentist environment had created a common front despite
their ideological differences, generating a new dichotomy between
parliamentary groups, a sovereign / unionist axis. The
sovereignty route was already established, from now on the efforts
would be aimed at making possible a consultation of
self-determination of Catalonia and thus have the democratic
legitimization for a possible separation of the Spanish State.
Parliament was going to be the institutional
vertex of this process as
the highest body
of representation of the general will.
With
the declaration of the Catalan people as a sovereign political and
legal subject, approved by Parliament
[9]
on
January 23, 2013
[10]
(declared
unconstitutional by the CC) and the creation of the Advisory Council
for the National Transition, the strategy for this stage was
established, based on the right of the people to decide but trying
not to get out of the legal frameworks in force and proposing
mechanisms of dialogue in mutual benefit.
With
this spirit, a commission of deputies from the Parliament asked the
Cortes to transfer powers to conduct a non-binding consultation on
the political future of Catalonia, while the Spanish Constitution
stipulates that the results of the referendums do not force the
public authorities
[11].
the
Congress
did not grant it by arguing that the Constitution made it impossible
for a referendum of self-determination, and much less could be
assigned special powers to a community, even if only to consult, when
sovereignty is indivisible.
Faced
with the obstacles imposed by the Congress and the prime ministerr, Artur Mas convened in December 2013 the non-binding
referendum on November 9, 2014 (9N), the legal basis of which was specified in Law 10/2014, of popular consultations other than referenda, and
other forms of citizen participation.
The
Spanish Government appealed to the CC, which suspended the call, and this the Generalitat acknoweldged, and resolved to convene a process of
alternative participation
[12]
with
the same questions as in the suspended
referendum.
With
regard to the guarantees of the consultation, there are two aspects:
the procedual onee, in that political parties were not guaranteed to be
involved in the campaign due to budget constraints, and the
institutional one, in that it was not guaranteed that the State would
acknowledge,
or activate the mechanisms to make the results valid [13].
The turnout on
9N exceeded
expectations;
2,344,288
Catalans
went to the ballot
boxes
[14],
of which 1.89 million voted in favour
of declaring Catalonia an independent State.
[graph0 -
Results Participate 2014]
9N did not solve the crisis.
The
central government remained immovable in its refusal to a referendum
of self-determination and the idea of endorsing the result was
imposed through an electoral process regulated by the LOREG (Organic
Law of the General Electoral Regime) and of cohesion of the
sovereignty forces in a new strategy that allowed them to move
forward.
Thus,
President Mas advanced the Parliament elections to
September 2015, with a "plebiscitary" character
[16].
Beyond the
symbolic, insofar as
the figure of "plebiscitation elections" does not exist in
the Spanish legal system, these elections were presented by the
sovereignists as the formal beginning of the separation of Catalonia
from the Spanish State. They managed to get
the public opinion and the media to read them according to the
independence framework, instead of the strict competences of the
autonomous government that was, from a formal point of view, what
they were choosing (Ballesteros, 2017).
The
sovereign bloc went
through a realignment.
The
passage of Convergència towards independence and the agreement with
ERC to form a joint list (Junts pel Sí,
JxS), brought about the end of its historic federative alliance with
Unió, which preferred to keep a more moderate tone and move away
from the possibility of a unilateral declaration of independence.
This division did not prevent the independence groups (JxS + CUP)
from obtaining, once again, the absolute majority of seats in the
Parliament but not in votes, weakening the weight of the referendum
discourse
[17]. Although
the sovereignty agenda did not change immediately (once the
Parliament's table was formed, Resolution
I/XI, on the beginning of the political process in Catalonia was
approved as a result of the election results of September 27, 2015,
where «the beginning of the process of creating an independent
Catalan state in the form of a republic» was
declared
solemnly, as
was
«the opening of a constituent process that supposes the democratic
disconnection of the Spanish State and the insubordination to the CC,
as well as the establishment» of structures of State «to
replace the
current Spanish institutions», was
annulled by the CC three weeks after its
approval, opened the idea of ratifying the will of the people through
a new referendum on self-determination, despite not being included in
the electoral programs.
On
the other hand, a gap was opened in the pro-independence bloc that cast
doubt on the leadership of Artur Mas in the leadership
of the sovereignty process.
After
the CUP’s
refusal to invest the president due to rumours
that implicated
him and CDC in cases of corruption
[18]
and
the cutback
measures
in his first term, Carles Puigdemont was appointed the
new
President of the Generalitat, assuming
Mas’
government
plan
and committed to enforce the mandate of resolution I/XI. Much of the
legislative task of the Parlament in the following months consisted
of the preparation and approval of the so-called "disconnection
laws" (new tax code, Law of the Social Protection Agency of
Catalonia, law of legal transience) (Kraus, 2017), which sought to
build the legal-institutional framework of the Republic of Catalonia
but which collided with the bastion of the CC, being annulled, opening
again the debate between legality and legitimacy.
The left
(CUP, CSQP) pressed for the holding of a referendum on
self-determination, which the Government accepted in exchange for the
CUP's support for the Generalitat's Budget for 2017.
On
June 6, 2017, President Carles Puigdemont announced the convocation
of the referendum on the independence of Catalonia for Sunday,
October 1 with the question, in Catalan, Spanish and Occitan-Aranese
(the official languages of Catalonia): "Do you want Catalonia to
be an independent State in the form of a Republic?", the
response to which would be binary between Yes and No.
[19]
When the referendum was announced, the authorities of both the Spanish Government and the Govern, and the main political parties of the Catalan and Spanish spectrum, declared different visions. For the [Spanish] Government and the PPC, the referendum was illegal because it did not find accommodation in the Spanish constitutional order; moreover, there was an explicit promise that the vote would not take place under any circumstances. C's and the PSC, kept the same PP line; while Catalunya Sí Que Es Pot (CSQP) expressed doubts about the rules of that referendum call [20]. In contrast, for the sovereignist parties (JxSí and CUP) and the Catalan Government, the call was based on the legitimacy of the democratic mandate originated by the September 2015 elections.
The announcement and call of a referendum for independence intensified the conflict. On the one hand, the call would require the Parlament de Catalunya to approve as soon as possible both the Legal and Foundational Transitory Law of the Republic (to establish the bases of the disconnection with the Spanish State) [21], and the Referendum Law [22]. On the other hand, the Spanish State, through the judicial power and the executive, sought to prevent it based on legal precepts of the state legal order (especially in the Constitution) and with government measures, such as the use of security forces against the citizens who participated in it.
When the referendum was announced, the authorities of both the Spanish Government and the Govern, and the main political parties of the Catalan and Spanish spectrum, declared different visions. For the [Spanish] Government and the PPC, the referendum was illegal because it did not find accommodation in the Spanish constitutional order; moreover, there was an explicit promise that the vote would not take place under any circumstances. C's and the PSC, kept the same PP line; while Catalunya Sí Que Es Pot (CSQP) expressed doubts about the rules of that referendum call [20]. In contrast, for the sovereignist parties (JxSí and CUP) and the Catalan Government, the call was based on the legitimacy of the democratic mandate originated by the September 2015 elections.
The announcement and call of a referendum for independence intensified the conflict. On the one hand, the call would require the Parlament de Catalunya to approve as soon as possible both the Legal and Foundational Transitory Law of the Republic (to establish the bases of the disconnection with the Spanish State) [21], and the Referendum Law [22]. On the other hand, the Spanish State, through the judicial power and the executive, sought to prevent it based on legal precepts of the state legal order (especially in the Constitution) and with government measures, such as the use of security forces against the citizens who participated in it.
To
ensure the legal application of the referendum results, the
sovereignist
parties had
tod
approve the so-called "disconnection laws".
There
were two paths.
The
most direct one
was
by decree law, provided for provisional legislative provisions in
case of extraordinary and urgent need (art. 38.1 of the Law of the
Presidency of the Generalitat and of the Government, article 64 of
the EAC)
[23].
Thus,
the [Catalan] Government could approve a duly substantiated decree
law to later communicate it to the Parlament that had to agree its
validation with the possibility of later parliamentary procedure or
repeal
(article 38.5), which guaranteed the speed in having a legal support
and the guarantees of the parliamentarians of the minority..
The
other path,
which had the support of the CUP, was the parliamentary initiative
[24].
Recourse
was made to art. 81.3 of Parliament's Rules of Procedure to include
the disconnection laws on the agenda of the following plenary:
The
agenda of the Plenary may be altered if agreed upon, at the proposal
of the President or at the request of two parliamentary groups or
one-fifth of the members of Parliament .. If an issue has to be
included, this one He must have complied with the regulatory
procedures that allow him to be included, except in an explicit
agreement in the opposite direction, by absolute majority
[25].
Consequently,
the Bureau of Parliament admitted its inclusion on the agenda of the
plenary session of September 6.
The
absolute majority of JxS
and the CUP [26]
made
it possible to avoid
ordinary parliamentary procedures, and
this
generated discrepancies
between the members of the Parliament Bureau.
The
PSC and C's parliamentary groups submitted a request for an Opinion
from
the Council of Statutory Guarantees of Catalonia (CGE), a
consultative body of the Generalitat that monitors
the adaptation of the laws to the Statute and the Constitution, on
the inclusion in the agenda of the proposal of a law of
self-determination referendum, the reduction of the deadlines for
submitting amendments and the decision not to allow the resolution
request to the Council itself
[27].
The
plenary
agreement
of the CGE of September 6, 2017
[28]
reminds
Parliament of
"the
mandatory nature, within the legislative process, of opening a
deadline for requesting a resolution to the Council, in guarantee of
the right of Members to exercise their role"
[29].
This
action of the pro-independence
majority was contradictory to its radical democratic discourse
because it violated the parliamentary rights of the minority, as the CC acknowledged in
reply to
the appeal for
protection
presented by the PSC.
It
must also be stated that since the CGE is an advisory body whose
resolutions are not binding since Judgment 31/2010, of June 28 of the CC [30],
avoiding the process was not substantive.
Viewed
in perspective, doubts are
cast
about the Government's commitment to the transcendental steps that it
had undertaken to take since it
delegated all the processing to Parliament, there being
urgent reasons that recommended the decree law that, in addition, had
guaranteed the rights of the parliamentary minority.
Nor did the
recurring practice of the PSC to alter the normal functioning of
Parliament through appeals to
the CC, breaking Parliament's inviolability,
follow the high
standards of democratic quality. We can
conclude that no parliamentary group lived up to what is expected
in a mature democracy.
Law
19/2017, of September 6, of the referendum on self-determination was
the first disconnection law to be processed and approved.
article
1 regulates "the holding of the binding referendum of
self-determination on the independence of Catalonia, the consequences
based on its
results,
and
the creation of the Electoral Board"
[31].
article
2 declares that "the people of Catalonia are
a sovereign political subject and, as such, exercise the right to
freely and democratically decide their own political condition."
It
also details the legal guarantees and holding of the referendum, such
as the date and call;
the
characteristics and regulations of the election campaign;
legal
and political guarantees, including the independence of the electoral
boards and polling stations, and the provision and accreditation of
international electoral observers. It
also creates
the Electoral Board, "the body responsible for ensuring
the transparency and objectivity of the electoral process, and the
effective exercise of electoral rights"
[32].
The
Law of the Self-determination Referendum was approved in the
parliamentary plenary session on September 6 with the votes of the 72
independentist deputies, the abstention of CSQP and the departure
from
the Chamber of Cs, PSC and PP in "sign of protest"
[33].
Subsequently,
the political parties in favour of the referendum were
to
speed up the processing of the following disconnection law, at the
same time as the CC approved in a
record
time
a
resolution of unconstitutionality both because
of
the conditions of approval of the referendum law and its content.
On
August 28, 2017, JxS and CUP presented the proposal for a law on the
Legal and Foundational Transitionality of the Republic
[34]
with
the function of being the "supreme norm of the Catalan legal
system" until the approval of the Constitution of the Republic
[35];
that
is to say, the law that laid
brought together
the legal precepts of the working
in the first instance of the Republic of Catalonia were
the Yes to
win
in the self-determination referendum.
Article
1 provides that: Catalonia is constituted in a Republic of Law,
democratic and social
[36].
From
this statement, the later article s provide for the position of the
Catalan State in the face of the European Union and the Spanish
State, legal guarantees and rights over nationality, predispositions
on the institutional system of the Republic, the constitution of the
Judicial Branch and the disposition of open a constituent process.
The
following are briefly summarized below:
-
Maintain the nature and position of European Union law and international treaties with respect to domestic law (article 4). Legal continuity of the current law (article 10) and with regard to the law of the European Union (article 14) and current international treaties (article 15).
-
Right of nationality of origin (article 7), acquisition of Catalan nationality (art.8) and double nationality. article 9 establishes that the attribution of Catalan nationality does not require the resignation of Spanish nationality, or any other. Guarantees linguistic rights (article 24) and the right to suffrage for Catalan nationals (art. 26.2).
-
Title IV, chapter 2 states that: The president of the Generalitat is the head of the State and assumes his highest representation [37]. Likewise, it is established that the president or the president directs the action of the Government. (art. 34). In these are generated the bases of the institutional system of the Republic. The same title includes the constitution of the Electoral Board (which is also foreseen in the Law of the referendum [38] ) that will have to regulate the constitutional elections and attribute powers to it in the other electoral processes, popular consultation and citizen participation (Chapter 5). The Electoral Board of Catalonia and the electoral roll). Finally, the compulsory attributions of the opinions of the Council of Democratic Guarantees (art. 61) are available in contrast to the powers challenged by the CC of the current CGE.
-
Regarding the adequacy of the judiciary, the Superior Court of Guarantees is created, which will protect the rights proclaimed by Catalan law on the one hand, and on the other hand, it would assume the functions attributed to the CC (art. 74) [39]. Additionally, article 80 states that the Generalitat will assume all tax competencies in the territory of Catalonia (art. 80), as well as the protection of tax obligations and social security contributions (art. 81). [40]
-
Finally, the Law contemplates the implementation, from the Generalitat, of a "constitutional, democratic, citizen-based, transversal, participatory and binding process", in case of "favourable outcome of the independentist option" (art. 85). In the same way, art. 86 resolves that this process will consist of three phases: "a first, participatory process; a second constituent election and drafting of a Constitution proposal by the Constituent Assembly; and a third, ratification of the Constitution via referendum ".
Parliament's
plenary approved Law 20/2017, of Legal Transitionality and Founding
of the Republic at the dawn of September 8, 2017 with the 71 votes of
JxS and CUP and the vote of the non-attached;
10
against CSQP and the abandonment of the Cs, PSC and PP hemicycle
[41].
-
Electoral Board of Catalonia
After
approving the Self-determination Referendum Law, Parliament chose the
members of the Electoral Board, an organ responsible for guaranteeing
the transparency and objectivity of the electoral process and the
effective exercise of electoral rights
[42].
Approved
by absolute majority, at the proposal of JxS and the CUP, it was
composed by the jurists Marc Marsal, Marta Alsina and, the
politólogos Jordi Matas
[43]
and
Tania Vege and Josep Pagès, a jurist, a political scientist and a
sociologist.
This
composition balanced a vision more based on the positive law with a
vision derived from the analysis of the political and social context.
There were
two problems. The first was that the EAC
stipulates that the electoral law requires 2/3 for approval.
The second was the challenge to the CT by the
Spanish Government of the disconnection laws, which implied
suspending the referendum of 1-O and all orders or acts for its
realization.
On
the basis of this suspension, the High Court, on September 21,
decided to apply "coercive sanctions" to the members of the
Sindicatura: fines of 6,000 (territorial electoal boards) and 12,000
(central syndicate) euros per day, until they renounce their charges
[44].
Such
measures and the judicial persecution of its members would lead to
the dissolution of the Electoral Board officially due to the
resignation of its members
[45].
*************************************************On
October 1, 2017, the Self-determination Referendum of Catalonia was
celebrated in spite of the suspension ordered by the CC and the
police measures taken by the Spanish Government.
Despite the
excessive use of the force of the Spanish police, the organization of
civil society and the impulse of the authorities of the Generalitat
facilitated the exercise of the right to vote.
Since the
approval of Law 19/2017, referendum on 5 and 6 September 2017, the
Spanish Executive Power took measures of a political and judicial
nature, through initiatives of various ministries and the
presentation of legal remedies to prevent the vote of 1O.
The Spanish
government presented four appeals to the CC that suspended both the
law and the referendum call, and actions were initiated by the
Ministry of the Interior, the Ministry of Finance and Public Service, the Ministry of Justice and the State Prosecutor-General's Office, intended for the Catalan authorities to ban the
vote:
-
Order of the State Prosecutor-General to the Civil Guard, National Police and Mossos d'Esquadra to seize ballot papers, ballots, instruction manuals for electoral tables or other types of propaganda [46].
-
The State Prosecutor-General's Office summons 712 mayors of Catalonia as suspected of assigning polling stations. The detention is ordered in case of incompetence.
-
Intervention by the Government of the regional accounts and assumption of the budgetary control of the Generalitat under the Ministry of Finance and Public Service given the Government's refusal to continue sending reports on its expenses.
-
Detention by judicial order of fourteen senior officials of the Government, carried out by the Civil Guard. Registries in the Departments of Economy, Foreign Affairs, Labor and Government of the Generalitat, in search of material related to the 1O [47].
-
CC fine of €12,000 per day to members of the Electoral Board of Catalonia.
-
Wide deployment of forces and security bodies of the State called the Copernican Operation promoted by the Ministry of the Interior, with the mobilization of 6,000 agents of the National Police and the Civil Guard [48], with a large number of Police Intervention Units or riot police [49], for the application of judicial directives to seize polls and prevent voting. In appearance before the Senate in January of 2018, the minister of the Interior, Juan Ignacio Zoido, revealed that the Executive had spent €87 million on the operation.
El
Sindic de Greuges de Catalunya
[50]
issued
a statement on September 26, 2017 that evaluated the judicial
appraisals of the Spanish authorities.
According
to the document, beyond other possible crimes, such as disobedience
or sedition, related to the suspension of the referendum regulations,
the convocation in itself was not a crime;
and,
therefore, should not be used as a legal motivation.
(..) the
convocation of general, autonomic or local elections or popular
consultations by referendum conducted by authorities or public
offices lacking in competition, ceased to be a crime pursuant to
Organic Law 2/2005, which repealed article s 506 bis and concordant,
introduced by Organic Law 20/2003, which punished with the arrest of
3 to 5 years the mentioned calls (..)
Days
before, members of the Government appeared before the media to
communicate the census of just over 5 million voting voters, which
had enabled 2,315 voting centers, 6,249 tables and given functions to
more than 7 thousand people
[51]. In
spite of the political-judicial measures of the Spanish State,
including judicial orders that prevented the opening of polling
stations for voting, the referendum on self-determination was carried
out through the almost clandestine organization of Catalan citizens;
as
well as the qualification of electoral colleges in places like public
schools, institutes or public civic centres.
Thousands
of citizens took part, some from the previous night and most in the
early hours of Sunday, October 1, awaiting the ballot box.
At
nine in the morning, the Generalitat de Catalunya announced the
implementation of the universal census
[52], whereby all citizens could exercise their right to vote at any
polling station, in anticipation of the impending closure of polling
stations by Spanish police forces.
The
ineffectiveness of the measures carried out by the Spanish Government
generated frustration in those responsible for politicians who,
despite having used all kinds of resources, could not prevent the
opening of voting centers, which resulted in the use of the
compulsion against the people who had come peacefully to exercise
their right to vote on the part of the forces and bodies of security
of the State.
The
tense hours happened in the morning. Members of the Civil Guard and
the National Police, with anti-riot clothing, burst into the polling
centers where hundreds of people had been concentrated to defend them
peacefully and prevent their closure. Police charges occurred in
different areas of Catalonia and left 1,066 people injured
[53], the majority attended by multiple bruises.
Spain
is party to international conventions and treaties, such as the
European Convention on Human Rights
[54]
and
the International Covenant on Civil and Political Rights
[55], and has the duty to safeguard the right to peaceful assembly, freedom
of expression and the proper use of force on the part of public order
bodies; Likewise, it must guarantee the effective enjoyment of said
rights. Consequently, the police action of 1Oct violated the civil and
political rights, both of the victims of police violence, and of
those who were prevented from exercising their right to vote.
Likewise,
the rules on the use of force require that the police use
alternatives wherever possible.
[56]
Spanish
law regulating the Civil Guard
[57]
and
the National Police Corps
[58] and their respective ethical codes protect citizenship rights and
foresee procedures when it is necessary to use force, with limited personnel and a force that is proportionate to the potential threat,
always seeking to minimize damage and injuries.
There are
several reports and complaints at the local level, as well as the
response from the European community, foreign media and international
institutions and organizations, about the disproportionate nature of
police action and the possible violation of human rights.
In
the Report on Violations of Civil and Political Rights promoted by
human rights organizations in Catalonia under the "SomDefensores"
initiative and "In the face of repression, we defend human
rights"
[59],
the direct transgression of rights to physical and moral integrity,
freedom of expression, opinion, reception and communication of
information or ideas and the right to freedom of peaceful assembly
are reported.
In
an investigation on victims of police violence, Human Rights Watch
[60]
issued
a report questioning the police action and urging the Spanish
Government to comply with the obligations set out in the
international human rights treaties in force in the Kingdom of Spain. The report likewise maintains that the institutions of the
European Union and its Member States must formalize their position
towards the Spanish authorities on the compliance of the national and
European laws that protect the rights of the people.
The turnout data were the countermeasure to the actions of the
Government of Spain. The results gave a resounding victory to "Yes
to independence". According to the count, 2,286,217 people
voted (43% of the census), with 90.2% of the valid votes being affirmative.
Apparently the police violence actions were counterproductive and encouraged participation. There were not many doubts
about this result, although it must be remembered that the Electoral
Board had dissolved and that the vast majority of supporters of No abstained not only from taking part but also from monitoring the
process.
The
episodes of violence on 1Oct were the crudest expression in a conflict
that, unless something was done, looked likely to continue escalating. A polarized scenario was formed, with an additional social
tension component resulting from the legal-institutional incapacity to
respond to a sector of the population that conceives
self-determination as the path to overcoming the crisis. Given this
scenario, the priority is to achieve a minimum consensus among the
political actors to make feasible a governance agreement. Dialogue became one of the priorities for the Catalans and the lack
of it, one of its main problems
[61].
Organizations
(national and international), collectives and figures of the social
and cultural field, and the international community promoted
initiatives to promote dialogue between the Spanish and Catalan
governments, political parties and other involved parties
[62].
The Ombudsman
[63]
issued
a "proposal
for dialogue and mediation in
the
current context "
by making it available to the authorities to mediate and organize a
table of understanding. The feminist groups Aristofánicas
/ Nosaltres Parlem
[64]
and Coordinadora 25-S [65]. They
presented, respectively, a roadmap focusing on the negotiation for
the resolution of the conflict. The same they did, for a dialoged and
peaceful exit, the Spanish Episcopal Conference
[66]
and
initiatives such as that of the Bar Association of Barcelona
[67]. From the Facebook profile "Hablamos?", gatherings were called was in
front
of the town halls of all the municipalities of Spain to take the
citizen initiative for "dialogue
and coexistence"
between Spain and Catalonia
[68].
But
this conception of dialogue was based more on the agreement between
ruling political elites, inherent in the representative democratic
system (Straface & Page, 2008),
that a broad social dialogue, which is not subject to previous
binding conditions
[69]. For this reason, the College of Politicians and Sociologists of
Catalonia (COLPIS) issued a statement
[70], recalling the role of dialogue as the basis of modern democracies and
considering "urgently and necessary that all the parties
involved accept an international mediation". "This
mediation should rebuild relations and favour a negotiated solution,
in the well understood that all options are legitimate; that no
initial political conditions can be imposed on any of the parties
that enters into the negotiations in a subordinate position and that public opinion must regad this agreement as reasonable." The
proposal was sent to international mediators and presented in
Brussels on October 13 .
Non-governmental
organizations, such as The Elders
[71],
and Nobel Peace Prize-winners [72],
international organizations, from the European Commission
[73]
to
the UN High Commissioner for Human Rights
[74],
without taking sides in favour or against the process, rejected
the violence and abuse of the 1Oct police force and called for dialogue
and understanding. However, despite the request for international
mediation by President Carles Puigdemont
[75],
international organizations left the mediation processes in the hands
of the Spaniards themselves. Paradoxically, the two main figures of
the Spanish State did not address the need to initiate a peace
process through dialogue. Felipe VI in his message of October 4
[76] did
not mention the words mediation or dialogue, not once, but instead called on "the
legitimate powers of the State -
to ensure
the constitutional order."
Similarly, prime minister Mariano Rajoy ignored the calls for consensus
and in his appearance before the media after the referendum he merely
stated: " We
have done what we had to do, acting with the law and only with the
law "
[77]. Before this blockade of the dialogue, the situation continued to aggravate.
The post
1Oct scenario made it clear that, despite the dialogue initiatives,
neither party would abandon (or make more flexible) its position
and probably could not do it for reasons of electoral sociology.
The
next step in the disconnection laws was to apply the popular mandate
expressed in the referendum and declare the independence of
Catalonia. However, the situation became complicated, while the
concern for the economy was added. Political uncertainty affected the
form of high volatility of financial markets
[78], generating contractions in the shares, with the fall of -2.85% of the
IBEX 35
[79] in only 3 days. The response of some companies to the possible
separation of Catalonia and the fear of a massive leak of deposits
was to transfer their social headquarters outside of Catalonia
[80] seeking
to eliminate uncertainty and reassure investors and savers. Some
companies also received political pressures, including the Crown, to
withdraw their headquarters
[81]. Several risk graders
[82] as
well as the IMF
[83] warned
that extending the conflict between the two States could "depress
business and consumer confidence" in Spain and especially in
Catalonia that, if continued with unilateral independence, could even
enter into recession if it was not recognized by any European nation
and, therefore, excluded from the euro zone
[84]. These pressures introduced asymmetries of power in which some business interests were identified as
a general interest, prevaling even over popular will, and conditioned public opinion through the fear of
losing economic security.
However,
the negative impact on companies was not significant, as shown in a Pimec
study [85], and even
the transfer of the corporate headquarters did not imply a greater
economic impact than the collection of taxes at the local level
[86].
The
volatility, it had also poured into the streets. Unions and sovereign
entities convened the general strike (or stop of country, as it was a
partial employer closure) through the " Table
for democracy "
movement in defense of Catalan institutions and freedom. The call was
not only to "stop" all activities on October 3, but also to
demonstrations in all the cities and towns of Catalonia
[87]. For its part, on October 9, there was a massive demonstration on the
streets of Barcelona convened by the Catalan Civil Society, in
rejection of a possible "dialogue or mediation"
[88] that
would entail the secession of Catalonia.
In
this context, October 10th arrived [89], the day scheduled for President Carles Puigdemont to present the
results of the referendum and declare independence in the face of
great expectation of society and the media. His speech in
Parliament was sui
generis; for he appeared as a representative of an autonomous government,
but in order to declare the independence of a State. The speech was loaded
with a historical content that sought to justify and legitimize the
sovereignty process, using all the restrictions imposed on the
autonomous community and describing the current situation of the
conflict, emphasizing the attitude of the Spanish State in the face
of the general will and support popular "majority"
expressed in the referendum of the 1st, aggravated by the hostile and
persecutory attitude of the Spanish Government with the Catalans and
making clear the incompatibility of the political system of Spain
with Catalonia.
The
surprise came when the President proclaimed independence,
legitimated by the 1-O, but immediately asked the Parliament "to
suspend the effects of the declaration of independence so that in the
following weeks a process of dialogue with the Spanish State will be
undertaken"
[90] not
to extinguish any possibility of a transitional peace process, and to
the threat of intervention of autonomy through the application of
article 155 of the Spanish Constitution
[91]. The
request for dialogue was not welcomed by the Spanish executive, since prime minister Mariano Rajoy immediately appeared before the media to
declare the subsequent application of 155.
The
day culminated with the signing of a document that provided for the
entry into force of transitional laws and proclaimed the "Republic
of Catalonia as an independent State"
[92] but
that, in not being voted by the Parliament plenary, amounted to a symbolic
declaration without binding legal value.
What
happened on October 10 generated controversies in all political
sectors. Carles Puigdemont, proclaimed and suspended the Catalan
Republic, a decision that created more uncertainty and confusion than
clarity about the next steps to follow and left a bittersweet taste
that was highly debated by public opinion, which was divided between
applauding moderation and condemning it for no complying with the popular
mandate.
The
Referendum Law, (suspended cautiously by the CC [93],
established the last steps in the independentista route. However, the
suspension of the effects of the declaration of independence of
October 10 provided a new opportunity to initiate a dialogue process.
Nevertheless, the President of the Government Mariano Rajoy, after
rejecting any mediation process, considered it impossible to mediate
between "the law and disobedience"
[94], asked the Government of the Generalitat to confirm whether or not the
independence of Catalonia had been declared, and if so, it gave an
8-day period to return to "legality"
[95]. Failing to comply with the requirement, he would request the Senate
to adopt the measures necessary for the fulfillment by Catalonia of
"its constitutional obligations [...] under the provisions of
article 155 of the Constitution"
[96].
President
Carles Puigdemont responded through two letters: The first one
mentioned the events of 1O, called for moderation and requested a
meeting that would never be held to explore possible agreements. The
letter mentioned the need to "reverse the repression against the
people and the Government of Catalonia"
[97],
before the citation as imputed, of the leaders of ANC, Jordi Sànchez,
and OC,
Jordi Cuixart and the mayor of the body
of Mossos d'Esquadra,
Josep Lluís Trapero. The presidential letter of President Mariano
Rajoy would arrive the same night that the judge of the National
Court, Carmen Lamela, ordered the entry into jail without the right
to bail, for alleged crime of sedition, to " the
Jordis "
[98]. In the letter, the Spanish prime minister separated from the actions
of the other public authorities (CC and National Court),
recommended "dialogue" in the space prepared for it (the
Congress) and demanded to clarify if on October 10 independence had or not been declared, since in the event that it had happened, there would be no alternative to applying Article 155, sacking the Government of the Generalitat and the "return
to the constitutional legality of Catalonia "
[99].
Before
the deadline was reached, the President of the Generalitat sent
another letter to President Rajoy warning that if he did not agree to dialogue, the declaration of independence would be voted in
Parliament, making the separation of Catalonia of Spain formal
[100].
This
exchange of correspondence was to be useless and did nothing but drag out the inevitable. oince the deadlines had run out, the Cabinet of October 21 decided to request authorization to the
Senate to cease the President, and the Government of the Generalitat
and call elections within a period of 6 months; to give veto capacity
to the central Executive against any initiative approved in the
Catalan Parliament, which would remain open but not being able to
propose a presidential candidate
[101]. This intervention to the autonomous community was based on article
155 of the Constitution and, to enter into force, it had to be
approved by absolute majority in the Senate.
After
creating an ad
hoc commisttee in the Senate
[102] to study
the application of article 155, the discussion and foreseeable
approval of the intervention for October 27 was stipulated, giving
President Carles Puigdemont the possibility of appearing and arguing against the application of Article 155. The only window that the Spanish government opened to curb the cessation of the Government was fo the President himself to call an election and give up continuing the
pro-independence process. Puigdemont, meanwhile, refused to go to
the Senate and sent a letter to the committee exposing "the
danger" of applying a measure of "generic
and of indeterminate breadth", which would deprive Catalonia of its
institutions and violate its political autonomy [103].
The
plenary of the Parliament to proclaim the new Republic of Catalonia
was also convened on October 27. Officially, the lifting of the
suspension of the declaration of October 10 was voted. The
resolution, jointly proposed by the JxS and CUP parliamentary groups, was voted in secret to "protect MPs from political
persecution"
[104] and got 70 votes in favour, 10 against and two blank votes. The MPs of
C's, the PPC and the PSC withdrew from the session in protest. The
text of the declaration of independence urges the adoption of the
decrees necessary for the issuing of the documents proving the
Catalan nationality; to promote "the signing of a double
nationality treaty with the Government of the Kingdom of Spain";
to dictate the necessary provisions for the adaptation of the law in
force before the entry into force of the transitional law; to recover
the rules suspended by the CC, especially those that have to do with
tax measures and the fight against inequality; to promote the
international recognition of the Republic, to recognize the validity
of international treaties; to integrate - unless expressly requested otherwise - the officials of the General State Administration
that provide services in Catalonia, and of the civil servants of
Catalan nationality who serve in Spain outside of Catalonia; to agree
on the necessary measures to exercise the fiscal, social security,
customs and cadastral authority; to promote the creation of a public
bank; to open a negotiation with the Spanish State about the rights
and obligations of an economic nature "assumed by the Kingdom of
Spain" and to develop a proposal for the distribution of assets
and liabilities [105].
In the
immediate vicinity of the Parliament, and later in Plaça Sant Jaume de
Barcelona there was a concentration to celebrate the birth of the
new Republic. For them, it was the materialization of years of
struggle but "difficult times and
tension" were still to come, in
the words of Marta Rovira, the MP and secretary general of ERC,
in the plenary session of the proclamation; and they did indeed come as the
response of the Government of Spain and the Senate was the immediate
application of article 155.
Article 155
of the Spanish Constitution was conspicuous on the political agenda
of the Government to combat what they called the independence "challenge". The application of this article was considered as a last
resort by the Spanish State to prevent the consummation of the will
of Catalan citizens expressed in the results of the 1Oct referendum.
But
these results collide head-on with article 2 of Spain's Constitution [106]:
The
Constitution is based on the indissoluble unity of the Spanish
Nation, the common and indivisible motherland of all Spaniards,
and
recognizes and guarantees the right to autonomy of the nationalities
and regions that integrate it and solidarity between them.
This
declaration of national unity generates
criticism in broad sectors of Catalan society. First of all, Spanish
territory includes a multiplicity of nations that were not
historically assimilated. The national feelings of some parts of
Spain created historical processes to recognize their culture,
territory, language and legal structures that culminated in political
institutions. To some extent, the application of article 155
would violate the right of the nations of the Kingdom of Spain to be
recognized as such.
On the
other hand, the Constitution was the culmination of a transition
process in which the greater part of the political actors of the time made great concessions for the maintenance of social
peace. The precept of the national
unity of Spain was a secular aspiration of the Spanish State that
introduce the Bourbon monarchy introduced in 1714, in force for centuries as a
national status quo and
not as an expression of the will of its peoples. Although the
analysis of this type of constitutional provisions can generate a
passionate and broad debate, it is not necessary in this report to
investigate the details of its legitimation, but rather to present in
general terms the possible constitutional and procedural inconsistencies
for the application of such severe measures as article 155.
Resuming
the case, the executive of Mariano Rajoy resort to federal
coercion
[107],
framed and justified in the unilateral defence of the constitutional
order and in Spain's aforementioned national unity. Thus from the Proclamation and Suspension of the Catalan Republic of
October 10, 2017, the entire political-state machinery was deployed
for the application of article 155 of the Constitution; a
constitutional article without legal development as to its scope or
the actions to be carried out in the event of its application. So a
mechanism without practical precedents and of little determined legal
scope, open to multiple interpretations, was applied.
Be that as it may, article 155 of the EC grants discretional powers to the central
government to intervene and demand the enforced compliance with
constitutional obligations:
If
an Autonomous Community does not comply with the obligations
established by the Constitution or other laws, or act in a manner
that seriously undermines the general interest of Spain, the
Government, prior to requesting the President of the Autonomous
Community and, in the event of non-compliance, with the approval of an
absolute majority of the Senate, may take the necessary measures to
force the latter to enforce those obligations or to protect said
general interest
[108].
But the
application of this article contrasts with the "right of
self-government and autonomy of the nationalities and regions that
integrate the Spanish territory" of article 2 of the
Constitution. Moreover, the way in which the executive asked the
Senate for approval of the actions framed in the 155 lacked the
necessary legal motivation for the scope that was required, since this
provision does not contemplate the framework of action, deadlines or
justification necessary required for its possible approval.
In
any event, the request presented by the Decision of the Cabinet of the Government of Spain to the Senate
for approval
[109] (Resolution of October 27) was justified by "the extraordinary
gravity of the breach of constitutional obligations and the conduct
of actions seriously contrary to the general interest by the
Institutions of the Generalitat of Catalonia"
[110].
The resolution included:
-
Authorisation for the Government to suspend parliamentary procedures, dissolve its legislature and the subsequent call of an electoral process.
-
Authorisation for the Government, for "the creation of the bodies and the appointment or designation of the authorities that are necessary for the performance of the functions and for the fulfillment of the measures contained in this Agreement".
-
"The sacking of the President of the Generalitat of Catalonia and of the Minister of the Department of Interior in the exercise of the functions provided for in article 164 of the EAC, and, where appropriate, of the dependent authorities; The exercise of said functions will correspond to the bodies or authorities created or designated by the Government of the Nation, which may dictate direct and obligatory instructions to the members of the Police of the Generalitat of Catalonia - Mossos d'Esquadra."
-
"The organs or authorities created or designated by the Government may decide the deployment of the State Security forces in Catalonia, coordinating the action of the Police of the Generalitat of Catalonia."
-
Authorisation for the Government for the correspondence of powers in the matter of telecommunications and digital services run by the Generalitat of Catalonia.
-
"These measures will remain in force and will be applicable until the new Government of the Generalitat takes office".
-
The Government, finally, may "put to the Senate modifications or updates of the initially authorized measures, the origin of which will, if appropriate, be decided by the authority or body that is created or designated for this purpose."
They were
powers of exception based
on an interpretation of the almost
authoritarian rule of law that
gave the central government total discretionary powers to adopt measures
for the maintenance of the alleged constitutional
order.
Parallel
to this, the Parlament approved the Declaration of Independence
unilaterally in which the Law on the legal and foundational
transitionality of the Republic came into effect as did the beginning of
the democratic, citizen-based, transversal, participatory and binding constituent process"
[111] as
provided by the Law. With the carte blanche of article 155 of
the SC, the Spanish executive implemented all the indicated measures, putting down the political process that sought independence, through
the force of constitutional law.
Organizations
such as ServidorsCat consider this use of article 155 to be
unconstitutional. They argued that a mechanism of such a scale could not be used
as part of the political strategy of the Government party. They added
that its application could not be implemented as a blank check in which
the rule of law and social coexistence depended on the discretion of
political power and the unilateral interpretation of the law [112].
After the
authorization of the Senate to apply article 155 of the
Constitution; the Government dissolved the legislature that emerged from the election on September 27, 2015 through Royal Decree 946/2017,
of October 27, to cal elections
to the Parliament of Catalonia and its dissolution (BOE, 28.10.2017).
The election was set for December 21, 2017. The call was one of
the central measures of the application of article 155 due to the
refusal of the Catalan President to convene elections and the
subsequent Declaration of Independence. The decision was made within
the framework of the available powers of the State to maintain
"the unity of the nation and the constitutional order" and
was motivated by the non-attention of the President of the
Generalitat of Catalonia, so that the same proceeds to the "Compliance with his constitutional obligations and the cessation of his actions that are seriously contrary to the general interest."
It was an
atypical call, made by the constitutionally dubious
application of a regulation that granted extraordinary powers and not
from the powers of self-government, and this gave rise to an anomalous electoral
campaign.
The
campaign featured the absence of the political leaders of
the main pro-independence parties since the candidates, Oriol Junqueras
(ERC), Joaquim Forn and Jordi Sánchez (JxCat) were in pre-trial detention [113]. Judge Llarena did not motivate his decision on the risk of
escape, but on the risk of criminal reiteration arguing that this
possibility could have "serious, immediate and irreparable
consequences"
[114], and this amounted to an intrusion of the judicial power in the political
processes.
Thus, though list leaders Oriol
Junqueras (ERC) and Carles Puigdemont (JxCat) could be candidates and be elected, saw their participation in
the campaign limited. People in exile (Puigdemont and former ministers), found it limited to telematic means of communication and
those held in prison could barely itake part in the campaign.
Consequently,
the circumstances of electoral competition were uneven, since the
parties could not participate in equal conditions and with an impartial institutional referee
[115] at their disposal. This abnormality conditioned the parties' speeches and strategies, which framed the electoral campaign towards the conflict
over the right of self-determination, leaving other problems on the
social and economic situation. This is how the path to 21 December denoted a broad coverage of the calculations and speculations on
parliamentary geometry, forgetting electoral promises,
initiatives and public policy proposals to improve the general situation of
the citizenry as a whole, and this was to lead to a democratic
deficit in a hypothetical Government Plan focused on the current powers of the Generalitat.
The
Democracy Volunteers organization issued a Report on Regional
Elections in Catalonia and media coverage in the electoral campaign,
where twenty-three (23) media were analyzed during each day of the
campaign, including media such as La Razón, ABC, El Mundo, El
País, El Periódico, TVE, TV3 and various radio stations
[116].
The independent investigation concluded that the coverage of the
press in Madrid was biased against independence and the political
options that defend it. They affirm that "there are important
indications that such coverage has not contributed to a fair reflection
of the political debate"
[117].
Newspapers
such as La Razón or ABC "have supported the campaign of unionism with enthusiasm"
[118]. It also mentioned Catalunya Radio, who received criticisms and
sanctions from the Central Electoral Board for apparently breaking
the impartiality that a public medium must maintain; However, RNE was
partial, supporting unionism without any sanctions or criticism
[119].
Finally, the coverage of TV3 stands out, which it considers balanced
and proportional to the two sides of the debate on independence, in
contrast to TVE, that maintained a biased coverage in favour of unionism
[120].
Graph
1, Attitudes of the Printed Media on the Independence of Catalonia
[121]
Graph
2, Attitudes of Rado Media on the Independence of Catalonia
[122]
Graph
3, Television Media Attitudes on the Independence of Catalonia
[123]
The
election day passed uneventfully for the voters, but there was
uncertainty about the reliability of the results
[124]. The rejection by the Central Electoral Board of the presence of international observers , arguing that it was not appropriate because the Spanish electoral legislation did not foresee them
[125], did not help. The Observadors per la Democràcia (ODEM) report, in collaboration with the
College of Politicians and Sociologists of Catalonia, dated December
27, 2017, questioned this decision:
The
Central Electoral Board has made decisions during the election
campaign that have been debated intensely by a relevant part of
Catalan society to the point of questioning even its impartiality
[126].
In
parallel, it recalled that both "the Organic Law of the
General Electoral Regime and the Spanish Constitution recognize the
right of transparency and information (article 20)". And that
"the international agreements ratified by the Spanish State
under the UN, the European Parliament and the OSCE, as well as the
1990 Copenhagen Document, require signatories to adapt the
legislation to allow the presence of observers whether they are
foreign or national"
[127]. The conclusion of the observation mission of the ODEM, limited
focusing especially on the mechanics of voting, is that no
significant irregularities or incidents have been identified and high
electoral participation stands out. However, on the overseas vote, the
Mission has highlighted the short time to vote and has gathered
complaints from voters around the world who have not been able to
receive ballots in time to vote
[128].
The
winner was the bloc of the old Govern (ERC and JxCAT), with 66 seats
and 43% of the total votes (32 ERC; 34 JxCAT), exceeding the 62 seats
of 2015.
With the CUP's 4 seats (4.47%), they totalled 70 seats (47.5% of the votes) out of 135. The bloc that fought for independence again won a
parliamentary majority.
In
comparison with the preceding processes (autonomic elections, 9Nov and
1Oct), in 2014 1,861,753 people voted for independence while in 2015
they totalled 1,966,508. On 1Oct [2017] the barrier of 2 million was exceeded
(2,044,038); on December 21, 2017, despite the fact that the
elections were imposed by the Spanish Government, support grew to
2,063,361
[129],
with a històric 81.94% turnout of the electoral roll
(5,322,269
[130] people),
and without including the overseas vote.
Regarding
this, the Informe sobre el vot
exterior: Defectes i millores en el procés electoral del 21 de
desembre del 2017 (Report on the overseas vote: Defects and improvements in the
electoral process of December 21, 2017) [131],
carried out in the framework of the campaigns of the international
network of Catalans al Món, assessed the deficiencies of the
campaign and the electoral process, and in particular the negative
effects of the vote on the participation index (turnout). The report
argues that the very fact of having to apply to vote, and the
deadlines and procedures for voting, hinder the optimal exercise of
the right to vote outside the national territory.
According
to the data, the implementation of the requested vote, in effect since 2011, has reduced the participation of Catalan citizens abroad
between 10% and 30%. Following the report, it was identified that of
226,381 Catalan and Catalan voting rights registered in the CERA on
21D, only 39,521 petitions (17.46% of this census) were received.
The report finds particularly serious that only 27,173 people of those that applied, that is, 68.7% of the applications, managed to do so; that is,
30%
of the citizens who had followed the procedure could not finally vote
[132].
In
spite of everything, the difficulties in the overseas vote surely did
not influence excessively in the final result. A majority of these suffrages went to the pro-independence bloc with 54.15%
[133],
a total of 14,647 votes (11,94% of the total of the CERA registry).
In
relation to the overall results, the pro-independence bloc was the clear
winner with 2,079,340 votes and 70 seats
[134];
Although C's was the most voted list, with a spectacular rise,
achieving 1,102,099 votes (25%) and 36 seats (11 more than in 2015).
The following were the PSC with 602,969 votes (13.94%), 17 seats;
CatComú with 323,695 votes (7.48%), 8 seats; CUP with 193,352 votes
(4.47%), 4 seats; and finally, the PPC with 184,108 votes (4.26%), 4
seats
[135].
In
conclusion, the conditions were atypical and unjust because they were
summoned from the extraordinary power and doubtful constitutionality
of the application of 155, because ERC and JxCAT had their heads list
in prison and exile,
respectively,
due to the distortion of the vote requested, the impediment to
international observers by the Central Electoral Board, the
disproportionality and the lack of neutrality of the coverage of the
Spanish media regarding the political options of the process
Be that as it may, the election gave the victory to, and reaffirmed, the pro-independence option. The spectacular rise in C's compared to
2015 could be explained by the rise in the historical turnout index, the expenditure that the political formation spent on the
campaign or the shift of former PP voters on account of the "useful vote". In any event, the "constitutionalist bloc" that they formed with PSC and PP could not build an alternative Government majority.
The
immobilizing attitude of the Rajoy Government was to be reflected more clearly in the days after the 21-D elections, with the obstruction
of the formation of a new Government of the Generalitat chaired by
Carles Puigdemont (head of the JxCAT list), intensifying the
conflicte-ridden relationship between the Spanish State and the part of
the citizenry in favour of self-determination.
In
this section we analyze the possible explanatory causes of the
deficit of democratic quality in Catalonia.
The
overseas vote was a historical vindication of emigrés and Spanish
exiles in the period of democratic consolidation. The political
participation of residents abroad is vital for the modern democratic
system because it is a concretion of universal suffrage. This right
is guaranteed and regulated in Organic Law 5/1985, of June 19, of the
General Electoral Regime (LOREG). All adult citizens enrolled in the census of absent resident
voters living abroad (CERA) have the right to vote. [136]
[137].
The
transformations operated in the economic and sociodemographic
structure in the international context, such as European integration
and globalization (Valiente, 2003),
have strengthened migrations in recent years. In Spain, the 2008
economic crisis intensified the exit flows (González-Ferrer, 2013)
.
According to the National Statistics Institute
[138], in February 2002 the number of voters enrolled in the CERA was
1,036,111; by February 2018, it had reached 2,040,705, an increase of
97%. Although the increase of the CERA does not give the overseas vote a leading role, in the election to the Parlament of December
21 they granted one more MP to the PP in Tarragona
[139].
As
Mahamut (2012) affirms: "If
there is a controversial element that affects the fundamental right
of political participation in our democratic history, it is
undoubtedly the different substantive and formal aspects that affect
the exercise of the active suffrage right of the Spaniards who
permanently reside abroad" (2012:
260)
The overseas vote has been problematic and full of difficulties since its
inception due to procedural and organizational failures. The
bureaucratic errors that have caused them to be full of irregularities and obstacles began with the first CERA, which was
formed from the current census in 1985 without cleansing, and caused the emergence, for example, of voters who were deceased
[140].
With the collaboration of the INE, the voting boards cleansed this and by 2008 they brought the irregularities down to 0.45%
[141].
In
spite of these efforts, in 2011, the Congress approved a reform of
the Electoral Law (LO 2/2011, of January 28)
[142] that
suppressed the right of suffrage of the resident or absent Spaniards in
the local elections (repealing article 190 of the LOREG) and
imposed the requested vote (a format that article 190 of
the LOREG contemplated in local elections) in all elections (Mahamut,
2012).
This reform hindered the vote of residents abroad with the idea of
combating fraud. However, the additional obstacles generated
multiple allegations of people who tried to vote and could not do so [143],
which resulted in a significant drop in participation in the overseas vote
[144].
The graph
[145]
illustrates
the effect of the "requested vote" in the election participation
of Catalan residents abroad:
Figure
4. Percentage of voting participation abroad
In
the election [146] on the 21st of December 2017 there were only 39,521 requests from 226,381 Catalans registered in the CERA with voting rights, that is, 17.46% of the
census
[147].
According to the Informe sobre el vot exterior: efectes i millores en el procés electoral del 21 de desembre del 2017 (Report on the overseas vote: effects and improvements in the December 21, 2017 electoral process) by the international network Catalans al món, the fact that you have to request the vote means that the deadlines for receiving the ballots are shortened so much that about 30% of those registered who did the proceedings correctly could not vote. There are other anomalies, such as that recorded by González-Ferrer (2013), on the differences between the real number of emigrants and the number of people registered in the CERA because the high costs of registering (transfer to the consulate, decline of the register in Spain) do not compensate for the few benefits (it does not even secure the vote for the delay of the ballots). Finally, there were complaints about the opening of votes by mail in the consulates prior to the day of totalization, due to lack of observers in the consulates and for lack of unified criteria on the treatment of the votes,which opened the possibility to fraudulent actions and questioned the transparency of the process. These deficiencies make the effectiveness of suffrage not guaranteed, undermining the quality of the democratic system.
According to the Informe sobre el vot exterior: efectes i millores en el procés electoral del 21 de desembre del 2017 (Report on the overseas vote: effects and improvements in the December 21, 2017 electoral process) by the international network Catalans al món, the fact that you have to request the vote means that the deadlines for receiving the ballots are shortened so much that about 30% of those registered who did the proceedings correctly could not vote. There are other anomalies, such as that recorded by González-Ferrer (2013), on the differences between the real number of emigrants and the number of people registered in the CERA because the high costs of registering (transfer to the consulate, decline of the register in Spain) do not compensate for the few benefits (it does not even secure the vote for the delay of the ballots). Finally, there were complaints about the opening of votes by mail in the consulates prior to the day of totalization, due to lack of observers in the consulates and for lack of unified criteria on the treatment of the votes,which opened the possibility to fraudulent actions and questioned the transparency of the process. These deficiencies make the effectiveness of suffrage not guaranteed, undermining the quality of the democratic system.
Some
recommendations of the CatalansAlMon
report
to guarantee the participation of residents abroad are:
1. Delete
the requested vote.
2. Offer
ballots in the consulates without having to request the vote.
3. Improve
the voting instructions by mail; add graphics, differentiate
envelopes with letters, numbers or colors to minimize bureaucratic
errors.
4. Make the
process more transparent: that the INE publish the total of votes
handled (not only the final scrutiny): total votes received in the
consulates, votes received at each polling station, votes cast and
total votes scrutinized.
An
assessment of democratic quality has to include the conditions of
freedom of expression of the media because coverage of a political
event allows its exposure to the community as an event of public and
social interest. The diversification of the media system is a good
symptom of freedoms, but in such polarized communication systems, as
in Spain, it is also necessary to take into account the right to
citizen information.
That the
media, both from Barcelona and Madrid, differ in the treatment
information of the same facts of the Catalan process is inferred
intuitively. Therefore, we must analyze and identify the coverage
that national and international media offer the process
of Catalan independence, hoping to find
a different treatment of information not only in Spain and in
Catalonia, but also internationally and it is possible to ask
Information offered by the media guarantees citizen rights to
information or erodes the democratic quality of the political system?
Among
the studies on differentiating media treatment in the national
context, Dr. Doctoral dissertation emphasizes. Ricard Gili Ferré
[148],
which identifies the effect of the type of coverage of the national
media in the perception and formation of opinions regarding the
Catalan process. The research partly states that "the media have
a privileged role in the process of social construction and play a
central role in legitimizing or delegitimizing a political project"
[149].
In this way, the so-called "fourth power" has a power that
democratically should belong to the will of the citizen. It is
expressed that media such as El Mundo and ABC "tend not to
expose the reasons that lead Catalan citizens to mobilize and,
therefore, not to explain the causes of the Catalan process,
generating a decontextualising effect"
[150].
The
thesis describes the editorial preferences of El País, La
Vanguardia, El Periódico, Punt Avui, El Mundo and ABC. As seems intuitive, the evaluation of events related to independence is covered with a negative outlook in most newspapers except in the Catalan
newspaper El Punt Avui. In the same way, the thesis maintains that
the newspapers analyzed "present narratives or contradictory and
incompatible stories among themselves"
[151]:
The narrative structures are annulled mutually in this area, and this
"self-destructive dichotomy" fragments the trust of
citizens in the media system.
(..) on the same facts and the same political project - the Catalan
Process - incompatible narratives are often constructed, since those
of means are opposed to those of others. In other words, there are
narrations that annul each other: either they are certain or are the
others - or perhaps it is not one of them -, but it seems impossible
that all can be true at the same time. A paradigmatic example of this: El Mundo and
ABC
turn the
Catalan Process into a project that links the Catalans to
nationalism, sectarianism, etc. On the contrary, El
Punt Avui presents
the Catalan Process as a project that triggers the Catalans, which
frees them from a Spain that it considers oppressive and contrary to Catalan interests
[152].
In
the case of the Spanish press, a "demonizing" account of
Catalanism and the right to self-determination has been generated
mainly through biased coverage, disproportionality and quality in the
published information and even the content of editorials. Analogies of citizens that manifest themselves in favour
of independence with Nazism or attribute to the process issues that
do not have to do with the political debate no longer cause surprise [153].
The
Report on the informative treatment of the 1O of the Audiovisual
Council of Catalonia
[154]
examines
coverage of charges and episodes of police violence and concludes
that a large part of national and international media provided
acceptable coverage, giving the required attention to the scale of
the event.
The report
shows the disparity between political positions. It can be seen that TV3 and La Sexta have been the medias that have given most space to
all political positions and to the victims of police violence.
International media, a large part of them printed editorials
critical of the police action. The differential of coverage was so great that
apparently a citizen outside the Spanish State could be better
informed about the day than a citizen in the same national territory.
They
are not isolated facts
but a generalized practice. In the Media.Cat
yearbook, "Media
Silences"
are reported that violent actions against people who are
pro-independence are not covered in the Spanish media.
[156].
Table
2. Distribution of information on TV3
[157]
Table 3. Distribution of information on TVE Catalunya [158]
Table 3. Distribution of information on TVE Catalunya [158]
The
situation of the media has been eroded in such a way that Reporters
Without Borders has expressed its concern, assuring that "during
the last quarter of 2017 there has been an unresponsive atmosphere
for the freedom of information in Catalonia"
[159]
and
notes that the tension, as well as attacks on Catalan journalists
during the police charges on 1-Oct, pressures several Catalan
newspapers for publishing information about it and the legal
summonses to media such as Nació Digital, El Nacional.cat, Vilaweb,
Racó Català, Llibertat.cat and El Punt Avui [160]
hinders
the exercise of the profession.
In
conclusion, the role of the media has been hampered by editorial
decisions and the coverage and treatment of information regarding
Catalonia, which has made it difficult for citizens to enjoy the
right to quality information. It is necessary to add the fake
news that is spread quickly by the
social networks, breaking the political environment.
Collective
action is central to political dynamics since it is cooperation
between individuals with common interests to achieve a public or
collective good. They do not originate at random times but in
response to political situations, such as breach of promises or
disapproval of certain actions, when the State or other actors
(institutions, private companies, international organizations) are
more vulnerable to such actions (Tarrow, 1988).
A cycle of protests is a phase of intensification of conflicts and
confrontation between dissidents who seek change and authorities
seeking to maintain the status quo (Mueller & Tarrow, 1995;
Tarrow, 1988).
In the case that concerns us, Judgment 31/2010 of the TC meant an imbalance in the democratic
balance that motivated the Catalan sovereignty to bet exclusively for
independence, opening a series of protests with mass demonstrations.
The
first was the rally We
are a nation. We decide called by OC against the ruling issued by the TC in 2010, where
about 1,100,000 people marched through Barcelona according to the City police [161].
The
following was the 11-S of 2012 with the motto "Catalonia new State of Europe", on the National Day of Catalonia, which opened
a cycle of annual mobilizations called by OC and the ANC of
magnitudes surpassing one million
people for five consecutive years, a period
in which the independence movement increased its popular support
[162]. Graph
1 shows almost parallel tendencies of preference for independence with the
Help demonstrations for this.
Own
elaboration. Source:
Generalitat de Catalunya /
Guardia Urbana and the Barómetro de Opinión Política of the Center
d'Estudis d'Opinió.
Civil
society has played a fundamental role in this cycle of mobilization.
The article "Movilización
en la sociedad catalana: aparición y pervivencia" ("Mobilization in Catalan society: appearance and
survival") by M. del Carmen Lindez Borrás, published in the
magazine Clivatge,
reviews the origins and support of this mobilization. She argues that
the origins of the movement cannot be considered as a consequence
derived from the context but rather have historical roots.
"In our case, the nationalist social movement in Catalonia cannot be
explained solely by considering it as a political event, or only from
the existence of an organization that articulates and gives shape to
the movement, or only from the existence of a Catalan collective
identity. History shows that there have been political actions
perceived as contrary to the interests of Catalonia and organizations
that demanded secession, while Catalanism as a bearer of a collective
identity has existed for many years."
And the independence movement, led by civil society organizations such as OC and ANC
capable of drawing political parties, is ideologically plural. In an
ideological linear plane, they are distributed both on the right,
centre-left and revolutionary left, although the movement is skewed to the
left. This plurality contributes to transversal mobilizations from a
substratum that does not underlie in the context but is due to
historical and cultural reasons.
On
the other hand, the Catalans who do not support independence have
also carried out massive concentrations, especially since 1Oct.
Most
have been summoned or supported by entities such as Sociedad Civil Catalana and have had representatives of PPC, C's and the PSC. The largest one took place in October 2017 with the participation of
350,000 people according to the City police [163].
In the ideological plane, they correspond to preferences that are
more in agreement with the right, centre right, centre-left and even
the extreme right. Consequently, it is also a transversal movement,
although slightly smaller than that of the independence movement and its
appearance corresponds more to the political context, partly because
the defence of the status
quo only
becomes active when it is really in danger.
A
particular phenomenon in the anti-independence movement should be mentioned. We refer to the "Platform for Tabarnia", a citizen
movement
[164] that
has appeared as a critical parody of the independence movement,
impelling a Tabarnia Republic annexed to Spain
[165].
The
mobilization of Catalan society is essential to understand the
process, its evolution and its impact on the system of political
parties. And given that we find massive opposing mobilizations, one may ask if Catalonia is a polarized and highly divided society.
The
ideological, economic or religious polarization between opposing
groups is a source of social conflict and therefore an obstacle to
political progress because the levels of conflict increase with the
magnitude of polarization (Esteban & Schneider 2008; Esteban &
Ray 1999; Montalvo & Reynal-Querol 2005, Duclos, Esteban &
Ray 2004). Polarization results from the
interaction between intragroup identity and intergroup alienation
(Esteban & Ray, 1994). Heterogeneity
and political polarization form a scenario that is prone to conflict
(Esteban & Ray, 1999; Torcal & Martini, 2013)
because the
political elites of the competing groups seek to constantly impose
themselves over the other and because there is a climate of
intergroup mistrust among citizens. Social trust is essential for the
consolidation of the democratic system and, in particular, for the
good performance of political and economic activities, as well as being the basis of social cohesion.
In a
polarized society, members of a certain group with common values, beliefs
and goals feel socially or ideologically separated from the
rest, so that the population ends up concentrating around a small
number of well-separated poles. The notion of polarization is
relevant for the analysis of the democratic guarantees in Catalonia
because we have to verify if the political and social tensions result
from two simultaneous dynamics: identification within the reference
group and distance between one or several other groups in competition, following Esteban & Ray (1994):
1. Social
polarization is a systemic attribute that occurs when groups are the
crucial actors. Insulated individuals have little weight in the
calculation of polarization.
2. The
level of polarization increases with the degree of homogeneity within
each group.
3. There
must be a high degree of heterogeneity between the groups.
4. The
number of sizeable groups has to be relatively small.
A state of
polarization can have multiple expressions in political parties, the
media, etc. and is configured through topics that divide the
population. The electorate in Catalonia, in addition to the division
between right and left, is also drawn up around national attitudes
(national identity, state-territorial integration). Disaffection from Spanish institutions, national attitudes and support for the independence have configured an attitudinal axis placing "centralist uniformitarianism and independence as extreme poles that include, in intermediate positions, decentralization, autonomism, federalism, etc."(Botella, 1984: 39).
Although
the existence of intermediate options and the fragmentation of the
Catalan party System - a result contrary to the one expected by the
literature (Esteban & Schneider, 2008) - deny the hypothesis of polarization at present, there is a risk of
polarization around centralist unionism and Catalan independentism.
Not because these options are worse or less legitimate than
supposedly "intermediate" options, but because the mix of
poor institutional performance and normative positivism has created
an inability to respond to a problem that has been germinating for
years. In
representative democracy, parties are still key in conflict
management and the aggregation of interests, as well as in the
formation of opinions and behaviors (Martini
& Torcal, 2016).
We recall that the parties: 1. Provide a source of identification; 2.
Frame the debate on specific issues and 3. Seek to establish
their ideology (Druckman & Lupia, 2016; Druckman, Peterson, &
Slothuus, 2013; Martini & Torcal, 2016),
so it is up to them to avoid a scenario of political polarization
Political
parties and groups have to urgently undertake the creation of a
minimal consensus on governance to fetter the trend towards
polarization in Catalonia. As an alternative to a conflicte-ridden scenario, an inclusive deliberative process on the future political
status of Catalonia, which explores the reasons for the rejection of
much of the population to the autonomous state, the federal state and
the independent Republic, appears to be the solution. From political
science and sociology, all are legitimate choices that depend on
citizen preferences but any move forward must be inclusive, must adapt,
reassure and respect the rights of the supporters of the losing
options.
The
decision of the CC in 2010 altered the political stability of
Catalonia and Spain, generating a conflict that has progressively
escalated with massive demonstrations, the blocking of the most
important decisions of the Parliament, the intervention of the
autonomy, the cessation of the Government and the opening of criminal
proceedings. This section analyzes
the impact that the behaviour, positioning and strategies of the
parties have in Catalonia and its impact in the Spanish political
system.
The Catalan
population has provided a majority mandate for the application of the
right of self-determination, but it is necessary to differentiate the
positions and attitudes of the Catalan parties before 1O and those of
after the 21D elections.
Before and
just after 1O, PDeCAT and ERC, which were part of JxS, set the agenda
together with the CUPs based on the popular mandate that emerged
during the 2015 elections. Consequently, the other parties had to
maintain reactive positions and attitudes.
After 21D
the behavior changed not because of electoral results or the fall of
social support, since the independentist parties maintained the
majority, but because the one who established the agenda was the
Spanish Government with the application of article 155 and the
proceedings of the prosecution. Now, whoever takes reactive behaviors
is the independence majority, outraged by prison revenues and other
decisions that they consider excessive.
We must add
the institutional blockage. JxCAT and ERC have extensively presented
candidates for the Presidency of the Generalitat. Carles Puigdemont
was the first option, but was blocked by the TC to understand that a
distance investiture was unconstitutional, then Jordi Sánchez,
prevented from exercising his political rights by judicial decision,
and, finally, Jordi Turull, who was not elected by The vote against
the CUP and sent to prison before the second ballot. This
judicialization of politics modified the speeches. JxCAT, still
defends the investiture of Carles Puigdemont. In the same line is the
CUP, with nuances, while ERC has a more pragmatic approach, to look
for a President without pending judicial cases.
In relation
to the party block that approved the application of article 155 (C's,
PSC and PPC), C's, which was the most voted party in the elections to
Parliament, has maintained the clearest discourse against the
process. He demanded from the beginning the thorough application of
article 155 and appealed to the completion of the Catalan process as
they stated that the "silent majority" in Catalonia is not
independent. His speech, moreover, was framed in the defense of the
rule of law as the only solution. The PPC remained in a similar line,
and both parties did not denounce police violence during the
referendum day. The PSC maintained a nuanced vision, since it was fit
for the independentist parties to return to "sanity." In
any case,The three insist on accusing sovereignists of preventing the
formation of a government without a candidate who "has pending
questions with justice."
CatComú-Podem,
was in an ambiguous position. He maintained and defended the right of
self-determination through a referendum agreed with the Spanish State
but disapproved of the strategy of the independentist bloc. Regarding
the violence of 1-O, they denounced the actions of the Government of
Spain to the same extent as the Catalan sovereigns.
At state
level, no blocks are distinguished. The PSOE de Sánchez and the PSC
of Iceta maintain the same position in fundamental questions of the
process. C and PP maintain exactly the same position as their Catalan
counterparts and We can have tried to stay between the two fronts,
opening up proposals for dialogue. It emphasizes the position of PNV
(Basque Nationalist Party), which remains reluctant to support the
general State budgets given the application of 155 and the
exceptional situation that the central Government has caused in
Catalonia and is likely to influence a potential distension .
. At
this time, there is a danger that competition and the stirring of
political parties feeds social polarization. There are very few
initiatives to solve the conflict through the dialogue and the
practice of politics little margin of maneuver, due to the negative
electoral incentives.
The 2017
was especially convulsive in Catalonia. The closer to 1O, the more
the situation escalated. Given the Rajoy Government's warning of
blocking the process and ceasing the Government of the Generalitat,
the protests became more frequent. The question we ask in this
section is not who has been the author of what or who has started
what. The relevant question is why situations of repression and
conflict are generated and what mediates can solve them. We will
start with a compilation of facts.
The
days before the referendum, in the concentration of protest against
the Civil Guard registry to the Department of Economy and the arrest
of 12 Generalitat charges, there was a police charge and the
destruction of two police cars
[166].
Juvenile
organizations of the far left, such as Arran, painted sites of the
PPC and C's by cataloging them as "fascists"
[167].
It should be remembered that the venues of the parties are spaces for
political participation and participation, so that graffiti and
graffiti harm the ideological freedom and fundamental rights and
freedoms, making it difficult for the parliamentary-representative
system to function properly. Although all parties suffer from these
types of attacks, which occur from different ideological options, it
must be remembered that PPC and C's have suffered them more intensely
and that PSC, ERC and CiU gave support in their moment to the
normalization of driven slaves by ICV
[168].
The
climax was 1O, when members
of the Civil Guard and the National Police with anti-riot clothing
burst into the polling centers where hundreds of people had been
concentrated to defend them peacefully and prevent their closure.
Police charges left 1,066 people injured
[169].
Subsequent
to 1O, the entry into prison of the presidents of OC
and the ANC, Jordi Sànchez and Jordi Cuixart, and eight members of
the Government and the exile of the President, Carles Puigdemont,
took place. The response was a peaceful demonstration of hundreds of
thousands of citizens under the slogan of " Political
prisoners of
liberty.
We are Republic "
[170].
The
call for new elections, after the government ceased, channeled the
conflict without solving it. The Spanish State has blocked the
investiture of a new President of the Generalitat. The TC prohibited
the investment of Carles Puigdemont, exile, and the precautionary
measures of the Supreme Court, prevented the investiture of Jordi
Sánchez, in preventive detention, a condition that does not suppress
its political rights in theory. The last case was Jordi Turull, sent
to prison the day before the second investiture vote
[171].
The income in prison, as well as the arrest of Carles Puigdemont, in
Germany
[172],
they fired the tension again and with a new wave of demonstrations
and police repression that were fed back
[173].
Outside the
strictly political area, the impediment to present the article
collection on "Political Prisoners in Spain" in the Arc
Gallery in Madrid.
These
dynamics do not lead to anything constructive because freedom is the
heart of the democratic system. For Descartes, freedom consists in
the possibility of deciding without which an external power
determines us. Understanding that freedom, in the modern sense, does
not exist in absolute terms, the democratic ideal is materialized by
guaranteeing certain powers and rights such as voting without
constraints and participating in debates and expressing opinions in
an environment of respect without fear of reprisals or violence.
Democratic politics are based on the plurality of ideas and, above
all, on the permanent opposition to contrary ideas. Managing freedoms
helps us to distinguish between regimes (Simone, 2016) and its
restriction leads to a deterioration in democratic quality.The set of
political forces must reflect on their role and we must appeal to
their social responsibility beyond their apparently rational
electoral maximization behavior because we are not facing a scenario
of zero sum.
As
of May 1, 2018 there were nine people in custody. The arrest on March
23 of the elected deputies Josep Rull, Raül Romeva, Carme Forcadell,
Dolors Bassa and Jordi Turull, who were released on bail, has been
the last movement registered by this report. In the same way,
President Carles Puigdemont was arrested on March 25 in Germany
[174],
in a joint operation of the CNI with the German police and the
National Police and although it was released on April 6, the
possibility of extradition and admission to prison in Spain is still
open.
The
three independentist parties, as well as OC, ANC and other social
organizations consider themselves to be political prisoners. So, are
there political prisoners in Spain? There had been no general talk of
this type of cases in Spanish territory since 1976. People in prison
are investigated for rebellion, sedition and embezzlement of funds;
However, the content and form of the records dictated by the National
Court and the Supreme Court
[175],
as well as the Spanish Government's statement that no public money
had been used to finance the 1O, it forces us to analyze the real
motivations
[176].
From
the first arrest warrant to the
jordis,
dictated by Judge Carmen Lamela of the National Court, criminalizes
the aspiration for Catalonia to be independent. Según Professor of
Law Javier Pérez Royo " n
or habido is not a solo sentido acto de violencia in criminal
violence as .." on people "who Puedo imputársele to
nationalism. The same thing can not be said of the acts of the State
with regard to nationalist mobilization. " It
is clear when we are going to justify the detention to make calls to"
(..) to promote
and ensure the holding of the illegal referendum of independence and
thereby proclamation of a Catalan republic, independent of Spain .. "
and
argue a risk of "criminal reiteration" to operate "
within
an organized group of people, continuously and continuously carrying
out active and necessary collaboration activities in relation to the
actions of people, organizations and movements aimed at achieving
outside of the legal channels the independence of Catalonia against
the rest of Spain in a process that is still underway "
[177].
The
most worrisome, and that shows the disproportionate and punitive
application of the law against independence, it was the decision of
Judge Pablo Llanera of the Supreme Court before the appeal that
requested the freedom of the Forn consellor. Even though he has
resigned his act of deputy, ruling out the possibility of influencing
the process of independence from the Generalitat, in the car argues
that he must continue in prison because he has not given up his
ideology: "the
investigator, in expressing his legitimate freedom ideologically,
logically maintains its sovereignty ideology, which, although being
constitutionally valid, does not assume that it should be reluctant
to evaluate that the conviction that maintains allows a reiteration
of the crime that would be absurd in which the opposite ideology "
[178].
The decision makes it clear that it deprives an individual of freedom
for his ideas.
But
only those who support the sovereignty process refer to these as
"political prisoners." International amnesty (AI)
[179],
the UN
[180]
and
other states and organizations that have expressed opposition to the
arrest and urged to liberate the independence leaders because it
violates the democratic system and generates a "dangerous
precedent for the rest of the world" they do
not classify them as "political prisoners", nor as
"prisoners of conscience". AI only uses that expression for
people who should not be punished in any way, deprived of their
freedom solely for the exercise of their human rights or for certain
elements of their identity and, therefore, have done nothing that can
be interpreted legitimately as a crime .
Law
professors such as Javier Pérez Royo and Joaquín Urías do not
label them as political prisoners, since this term is incompatible
with that of a democratic State
[181],
but consider that the Spanish State has incurred in democratic
deviations that configures a "situation
objectively contrary to fundamental rights"
[182].
In this
report we can not answer clearly the question raised but we find that
the entry into prison of the leaders of the sovereignty process has
served as a stress test for the Spanish democratic system and the
result is a lack of guarantee of fundamental rights. Although the
concept of political prisoners is incompatible with the democratic
State, the ideology of the independentist leaders conditions their
freedom so that we are faced with a low quality democratic State. The
explanation for this deterioration is that the State has decided to
reduce political risks and protect itself at the expense of the
rights of its citizens, which also calls into question the solidity
of the rule of law that is said to be a defendant.
The effect
of the Catalan question on the behavior of the Spanish judicial
system is a topic of great importance briefly dealt with by the media
and even less studied by social researchers.
Although
it is still in scientific debate, we resort to the hypothesis of
Esptein and (2005) on the effect of crises that threaten the security
of a nation in judicial decisions. Such crises encourage justice to
limit civil rights and political freedoms more likely than in
situations without such stimuli
[183].
In this way, judicial decisions taken in exceptional circumstances
may lack the necessary justifications and motivations and, at the
same time, limit rights, freedoms and constitutional principles
parallel to national security or even higher prevalence.
The
application to the Spanish case would be: before an event that
conflicts with different constitutional principles, the principle
that historically has formed a larger scale institutionality (Unity
of the Nation freed up to the Law of Autonomy, conceived both in the
same article of the EC) prevails. . In situations that stress the
system, such as the search for self-determination from the territory,
the judiciary reacts by defending the "dominant" principle
perceived as "threatened".
Thus, there
is a greater likelihood that a conservative inclination prevails in
judicial systems and that exceptional measures be adopted that
curtail the limits of the right to reduce the "perceived threat"
and restore the status quo .
Can this hypothesis be extrapolated and, therefore, the Catalan
question stimulates the conservative behavior of the Spanish judicial
system?
The
"safeguard" of the informal institution, "Unity of the
Nation", historically and formally shaped in the 1978
Constitution, has been the guiding principle of the State's powers
against the process .
It is defended by the majority in the Cortes Generales, since it
responds to a state of public opinion that considers its defense as a
priority. The incentives of electoral sociology also explain the
decisions of the Spanish Government, reluctant to actively tackle the
pressure generated by the process, but rather with police and
judicial measures, as well as with the extraordinary measures
envisaged in the institutional framework, such as the application of
article 155 of the EC, the most powerful manifestation of the
so-called federal coercion in
the Spanish State. With that it prevented a high electoral cost for
its party at national level
The process
clearly identifies the limitations of
democratic political action in Spain because of the constraints that
the constitutionality of the State exercises over political
participation. The concept of the rule
of law, which normatively should
generate certainty ends up being a destabilizing factor by blocking
the democratic legitimization of the system. This explains why the
Rajoy Government opted for the extraordinary measure that caused the
most discomfort and that it had to be carried out by bringing almost
the extreme the institutional backgrounds of the Senate, the
Prosecutor's Office and the Judicial Branch. This "legal
solution" to a problem that warrants a political agreement has
distorted fundamental principles of the rule of law such as the
adequate and proportional interpretation and use of the law, the
protection of civil rights and the enjoyment of political freedoms.
Applying
the most powerful options but at the same time being the most
transitory and inefficient, it has obstructed the democratic dynamics
and imposes the normative staticism justified in interpretations of
the law unilateral and based on legal positivism. Consequently, does
the "mantra" of the law empire can be used indefinitely
without having consequences in coexistence and other basic principles
of society ?, and where has the role of politics, negotiation and
consensus in the search of a democratic solution in a matter with
high social support?
To answer
these questions, the considerations of several organizations,
magistrates and professors who have analyzed the question are
collected. Such assessments will allow, at least from the descriptive
point of view, to identify the existence to some extent of what is
argued in the first paragraphs.
Two
dimensions are seen in decisions that have limited the enjoyment of
rights and freedoms. The dimension regarding the decisions of the TC
regarding the people in prison; and another regarding the possible
relationship between the restrictions of fundamental freedoms with
the stimulus that could have generated the last events of the Catalan
question (especially the referendum and the Declaration of
Independence) in the behavior of the Spanish judicial system.
Additionally, it Recoger rating on the
judicial independence.
Jordi
Sánchez and Jordi Cuixart, former presidents of ANC and OC, were
charged for the crimes of sedition (article 544, Criminal Code) and
rebellion (article 472, CP), involving severe prison sentences of up
to 15 years for sedition and 25 by rebellion, have been seen
unjustified by a large part of jurists and analysts because the
motivation to impute these penalties must necessarily be the
existence of "a public upsurge and tumultuary to prevent, by
force or outside the legal channels, the applications of the laws "
[184]
for
sedition and "violent and public uprising to, among other
objectives, repeal, suspend or modify the Constitution or whole or
partial or declare the independence of a part of the Spanish
territory"
[185]
for
rebellion
Montserrat
Comas de Argemir, spokesman for Judges and Judges for Democracy in
Catalonia, states that "the crime of rebellion requires that a
public uprising be violent." He continues arguing that the
Attorney General's interpretation has been "that the acts that
have been carried out on the independentist road map are constituting
a type of violence that is coercive or intimidating"; In turn,
the Supreme Court has appealed to that reason to justify the charges.
And it ends, although there has been presumed disobedience to the
resolutions of the TC, this crime does not in principle contemplate
prison sentences of freedom and "they can not integrate the
crime of rebellion because there has not been the physical violence
against people, nor have there been occupation of institutions, or
violent demonstrations .. "
[186]
The
most representative episode of legal interpretation apparently biased
in the decisions of the Supreme Court was to prevent Jordi Sánchez
from exercising his fundamental right of participation under the
justification of the risk of "criminal reiteration",
breaking the principle of political equality (arts 14 and 23.1 of the
Constitution
[187]
).
Sánchez is deprived of freedom but is not politically incapacitated
by a firm sentence. His legal representation asked the Chamber to
instruct the case that " the immediate agreement of Mr. Sánchez
or subsidiary the necessary measures so that, in the exercise of his
fundamental rights, Mr. Sánchez can go personally to the investiture
debate planned for the next day March 12, 2018 "
[188].
The Supreme was prevented again in April following the resolution of
the UN Human Rights Committee that urges Spain to take all necessary
measures to ensure that Jordi
Sànchez
can
exercise his political rights
[189].
Jurists
like Javier Pérez Royo have repeatedly valued the motivations and
interpretations of the constitutional regulations applied in this
decision. For Pérez Royo, the only way to prevent the exercise of
fundamental rights of the EC of this magnitude is whether the
accused, who was proposed by Roger Torrent, President of the
Parliament, in accordance with the provisions of the EAC, was
convicted by a final judicial ruling and therefore without a
parliamentary charge.
If
"the right of suffrage can only be limited by a final judicial
ruling for a crime that results in the loss of the exercise of the
same"
[190],
the arguments to prevent Jordi Sánchez go to investiture debate fall
by his own weight (no condition that motivates them) In this way, the
magistrate of the Supreme Court would be violating both the right of
passive suffrage of the defendant and the one of active, of the
Catalan citizenship that voted it in the 21D. Pérez Royo considers
that the charges of the crimes of rebellion and sedition do not
adhere to the legal order requirements and, finally, it exposes that
the judge's decisions "accredit his lack of impartiality"
[191].
The high
use of judicial decisions as the only resource to face political
situations in the Catalan process has raised criticism and attention
calls. Although several reports that critically analyze the situation
of the Spanish judicial system do not directly link this deficit with
the political-judicial decisions against the process, the
observations and valuations that they generate, can help us to
identify the imperfections of democracy in Spain.
Since
the reform of Gallardón in 2013, which modified the composition,
appointment and functions of the General Council of the Judiciary
[192];
the Spanish judicial system has reached the lowest levels in the
indexes of judicial independence in the countries of the European
Union
[193].
Another
interim injurious measure was the TC reform of 2015
[194],
which attributes executive title to its resolutions and gives it
coercive powers to carry out its execution. This reform was carried
out to extend the legal powers of the State to "deal with the
implementation of the so-called unitary roadmap of the Catalan
sovereignty process"
[195],
signed by parties and independentistas associations the same year.
The
"Communiqué on political interference in the Judiciary and in
the TC", issued by "Judges and Judges for Democracy"
on February 5, 2018
[196],
expresses concern about his lack of independence regarding political
power. The first point express, that "within the Annual Report
of the European Commission on the state of justice in the countries
of the European Union; Spain appears as the third State with the
highest percentage of people perceiving that justice is not
independent. " And "according to the aforementioned study
are the inferences and pressures of the Government and the policies
implemented the main reason for such perception"
[197].
In the same vein, the "statements of the Minister of Justice
anticipating decisions of the judiciary regarding investigations
framed in the process" are worrying insofar as the limits of the
powers of the State are blurring, "undermining the trust of the
citizens in the Courts of Justice "and eroding the rule of law.
It ends by recalling the guarantees that should be applied
normatively to achieve judicial independence and the imperative of
the bodies of the Judiciary in "away any suspicion of bias and
manipulation"
[198].
In this
section we have evaluated whether judicial actions apply democratic
parameters in their legal interpretations and we have found evidence
of biased interpretation, a situation that does not deserve minor
attention, and that coincides with decisions outside the Catalan
question that have to do with the transgression of rights and
freedoms. Examples of constitutional institutionality against
fundamental freedoms are the controversial decisions of the Spanish
Courts regarding freedom of expression, such as sentences against
rapists with restrictive sentences of freedom and sentences caused by
"serious injuries to the crown" and "insults to
religious sentiment ".
These
events, although they have no demonstrable relationship with the
effect of the process in the Spanish judicial system, allow us to
glimpse the democratic failures of the Spanish State regarding
fundamental freedoms and civil rights, to the extent that entities of
international reputation in Human Rights such as Amnesty
International, has drawn attention to Spain. In his annual report he
denounces restrictions and violations of human rights, such as
freedom of expression, political freedoms and the right to peaceful
assembly of people who support Catalan independence
[199].
Resuming
the initial question, could the Catalan question have stimulated the
conservative behavior of the Spanish judicial system? The answer is
open from the causal point of view, pending new social
investigations. However, perceived threats towards a principle (Unity
of the Nation) that historically has obtained prevalence on others
that constitutionally are at the same level (Right of Autonomy), has
generated a distortion in the constitutional balance, caused
qualified critics and worsening the confidence of society regarding
judicial independence and erosion in the principles of the rule of
law.
With
regard to the limitation of civil rights and political freedoms, the
decisions of the magistrates that carry the processes of Catalan
politicians and social leaders suggest possible breaches of
fundamental precepts of the Spanish and European legal framework. The
strategies of political power and its influence on the judiciary have
led to interpret the law to the limit. At least during the last
months, the Spanish political system has become a radical version of
the phrase "in front of the government of men, the rule of law"
[200];
in which exaggerated positivist legalism has been used as an alibi
for not dealing with problems of a political nature; causing
complications in coexistence and eroding the democratic principles of
the Spanish State.
This
excessive and distorted use of the rule
of law has distorted the
essential function of politics as an arena of competition between
political proposals that seek social agreements that guarantee
coexistence. To the same extent, it has been described that judicial
decisions against freedom of expression, although not directly
related to the effects of the procés on the behavior of the judicial
system, denote the deficit of the democratic quality of Spain in
terms of fundamental
rights.
Section
III: Conclusions and proposals
The
report has analyzed with critical perspective the relationships and
relevant circumstances in the last years of the conflict, in addition
to its main actors. Since the ruling of the TC in 2010 we have
described the events that have shaped the current scenario of
political and social tension, the result of poor institutional
performance and the excess of normative positivism, which has
generated an inability to respond to the demands of Catalan society .
The main conclusion is that the Spanish political system has to treat
this crisis for what it is: a constitutional crisis.
The
Constitutions are political pacts that ideally are of consensus. When
the majority of the population does not feel identified with the
Constitution, it must be replaced as quickly as possible through
democratic processes. In the case of the Spanish Constitution, the
rigidity of the procedures makes its modification difficult, which
requires an agreement between all the parties, or if a blocking
minority appears, to seek alternative mechanisms for the application
of the parameters of the international law of human rights. Recall
that the Spanish Constitution, despite not having explicitly
incorporated the free determination of peoples in the article s,
signed the International Treaty of the UN that recognizes it as a
higher rule of law, and is binding according to article 10.2 EC
"Title I. Of the fundamental rights and duties. article 10.
[...] 2. The rules regarding fundamental rights and freedoms that the
Constitution recognizes to be interpreted in accordance with the
Universal Declaration of Human Rights and international treaties and
agreements on the same matters ratified by Spain."
1.
Balance of democratic quality
Democracy
constitutes a system of norms that is the product of previous
consensus, which enables the vote of all citizens and allows
decisions to be made freely (Bobbio, 2003). Free access to
information and respect for economic, social and cultural rights, of
all equally, is vital. And the importance of good governance and the
responsiveness and accountability of the elected representatives lies
in the fact that it strengthens public confidence in the
institutions, generating positive attitudes such as satisfaction with
the performance of democracy.
On
June 28, 2010, the TC decided to modify and reinterpret the EAC, a
text on which three parliamentary chambers had worked (Parliament of
Catalonia, Congress and Senate) and approved by the citizens of
Catalonia in the June 18 referendum. 2006. With this decision, the TC
opened a political conflict that eroded the legitimacy of the
institutional architecture in force in Catalonia: an indirectly
elected body imposed its criteria on the chambers representative of
the popular will and direct democracy.
The
disaffection on the part of the Catalan population regarding the
functioning of the institutions that make up the rule of law and
undermining the legitimacy of political institutions initiated a
political process that has culminated in the blockade of legislative
and executive activity and the arrest of social and political
leaders.
This
situation has diminished the democratic quality and the institutional
mechanisms of conflict resolution and consensus search of the Spanish
political system. In a brief balance it has been possible to identify
the following deficiencies:
1.
Difficulty of state institutions to activate effective conflict
resolution mechanisms because their main leaders are trapped by the
electoral sociology. From Catalonia, the institutions have demanded
dialogue and negotiations to redirect the conflict. From the Kingdom
of Spain dialogue was offered limited to the current constitutional
framework. The distance between the written constitution and the
Catalan public opinion has widened more and more, until reaching the
current point.
2.
Breach of TC resolutions in the preparation of unilateral referendums
(9N and 1O).
3.
Lack of respect for the rights of the parliamentary groups and
limitation of their participation in the legislative activity.
4.
Appeals by parliamentary groups to external powers (the CC)
so that they violate the inviolability of the Parliament.
5.
Excessive and discretionary activation of the mechanisms of federal
coercion and autonomic intervention provided for in the
constitutional regulations.
6.
Excessive use of the judicial system to solve problems of a political
nature.
7.
Repression of the police and security forces of the State against the
civilian population in a peaceful attitude, specifically the 1-O.
8.
Irregular and disproportionate coverage of the media regarding what
is happening
in Catalonia.
9.
Deficiencies in the regulation of the vote: difficulties in the overseas vote and lack of an electoral law of Catalonia.
10.
Social crisis and risk of political polarization. Escraches and
attacks on the seats of political parties, which have been socially
normalized from the same Parlament.
The
situation can be aggravated if the actors maintain the same dynamic
that they have developed in recent years.
10.
The Observatory’s proposals for the improvement of democratic
quality in Catalonia
One
of the great challenges that Catalonia has is to achieve a minimum
consensus among the political actors that enables a governance
agreement, seeking to avoid polarization, improve governance and
democratic quality and peaceful coexistence.
From
the Observatory we propose that
the political and institutional actors approach the conflict from the
preferences expressed by the citizenry,
from the pluralism and with full respect to the active exercise of
the fundamental rights and the public liberties. The basis of modern
democracies is dialogue, so public deliberations and the search for
consensus are the democratic tools to deal with them. Only when the
conflict remains persistent to the dialogue, the differences must be
resolved through parliamentary vote or referendum and must never use
violence, fear, coercion and lies.
The
concrete proposals are:
1.
Respect the inviolability of the Parliament and stop the violations
of civic and political rights.
2.
Release the imprisoned members of the Government and social leaders,
to reduce conflict and guarantee the conditions of freedom, and stop
the actions of the Prosecutor's Office against social and political
activities.
3.
Cesar with the intervention to the Autonomous Government and its
administration and return its control to the Parliament of Catalonia,
organ chosen democratically by the citizens of Catalonia.
4.
Respect scrupulously the rights of parliamentarians, especially those
of minority groups and ensure that they can participate freely in all
legislative production.
5.
Accept an international mediation that guarantees the equality of the
parties. Surveys show that most Catalans want to resolve this crisis
from politics and not through the courts. This mediation should
reconstruct the relations and favour a reasonable negotiated
solution, established by means of democratic participation.
6.
Open a constituent process that appeals to all social sectors from
the recognition that all options (autonomy, federalism, Republic of
Catalonia, among others) are legitimate. The process should determine
the reasons why a large part of Catalan society refuses to continue
being an autonomy of the Kingdom of Spain, a federal articulation or
to constitute an independent Republic to promote an inclusive
solution where everyone feels comfortable. The process should have a
deliberative participatory process and a parliamentary work based on
consensus, as well as negotiation with the Spanish Government and the
Cortes Generales. The new constitution should also update social and
democratic rights.
7.
Resume the legislative and executive activity in Catalonia to advance
in the consolidation of social welfare policies and educational
policies.
8.
Encourage a political culture of respect that condemns escraches and
attacks on the seats of political parties. Political parties should
systematically condemn all attacks and avoid the strategic use of
victimhood by reacting only when they receive the attacks.
9.
Approve or, as the case may be, promote the necessary legislative and
administrative changes to improve electoral processes: Electoral Law
of Catalonia, vote of the residents abroad, facilitate observation of
the process. 10. Open a public debate with the main operators in
social communication, their professionals, political parties,
professional associations and other interested agents on the role of
the press in democratic societies.
11.
Conclusions
The
demands for self-determination were born out of the perception of the
Catalan citizenship that their voice was not taken into account with
enough consideration in the collective decision making in Spain and
that today Catalonia lacks institutional mechanisms that guarantee
sufficient self-government in areas such as taxation, immigration and
social policies. This subjective perception, which may or may not be
based on objective facts, means that a good number of Catalans have a
feeling of exclusion and political disaffection.
The
reaction of the Spanish democratic system to the procés
has served as a
stress test,
making visible gaps in the guarantee of fundamental rights. One
possible explanation is that the State has prioritized reducing the
risks for the national unit. Additionally, the application of the 155
and the blocking of Parlament decisions through the TC lead to
serious considerations about the democratic quality of its political
and institutional system.
In
the Catalan political system there are also practices of low
democratic quality, such as the deterioration of the rights of
minority groups in parliamentary work or those painted at party
headquarters. And there is a risk of polarization since the majority
of the population is dissatisfied with the level of autonomy but the
distribution of preferences indicates that there are no overwhelming
majorities on the political status that Catalonia should have. If
this risk is not treated correctly, the state
of polarization would leave a very
narrow space for dialogue.
Treating
the problem with high standards of democratic quality requires
practicing political dialogue with an inclusive vision, which allows
us to overcome positivist legalism based on a technocratic vision of
the application of public law. Democracy is based on public trust in
institutions, from which derives its legitimacy, so it is necessary
to respond to the demands of citizens, who are plural, through
constructive ways of doing politics.
Overcoming
the complications for coexistence and the current deterioration of
democratic principles in the Spanish State and in Catalonia requires
opening political and social dialogue processes that reduce the
distance between the 1978 Constitution and Catalan public opinion,
giving equal value to all options (status
quo,
federal State
or independent Republic)
and take the decision based on citizen preferences and political
commitment, seeking to integrate comfortably the population as a
whole in the resulting political system, in any of its three possible
solutions.
References
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Siguiendo al flautista. Framing del independentismo catalán en las
votaciones de 2014 y 2015. Estudios
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Botella Corral, J. (1984).
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i millores en el procés electoral del 21 de desembre del 2017.
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[1]
Approved in the Congress of Deputies with 189 AYE
votes
from
PSOE, CiU, ICV, Izquierda Unida, the
Partido
Nacionalista Vasco,
Coalición
Canaria
and
the
Bloque
Nacionalista Galego;
and
154 Noes, from Partido
Popular,
Esquerra
Republicana de Cataluña
and
Eusko
Alkartasuna
. Nafarroa
Bai
and
Chunta
Aragonesista
abstained:
https://bit.ly/2jWVkLV
[3]
Data
from the El
Mundo
newspaper. Available
(on line): https://bit.ly/2KlWFXw
[Accessed on 08/02/2018; 11:50]
[5]
CiU won 62 MPs,
[6]
short
of the
absolute majority. It
eventually
agreed
with the PP on
the
forming
of
a government.
[6]
In 2010, Parliament was composed as follows, in the number of seats:
CiU 62 (38.43%), PSC 28 (18.38%), PP 18 (12.37%), ICV-EUiA 10
(7.37%), ERC 10 (7%), C's 3 (3.39%): https://bit.ly/2KlrBqX
[Accessed on 08/02/2018: 10:32]
[7]
According to the June 2012 barometer of the Opinion Studies Centre
(CEO), with
a sample of 2,500 Catalans, 68% stated
that Catalonia's autonomy level was insufficient and 34% wanted
Catalonia to be an independent State. Executive summary
of the study: https://bit.ly/2Kjw1yG
[Accessed on 20/03/2018; 11:11]
[8]
In 2012, Parliament consisted of the following number of seats: CiU
50 (30.07%), ERC 21 (13.70%) PSC 20 (14.43%), PP 19 (12.97%),
ICV-EUiA 13 (9.89%), C's 9 (7.56%), CUP-Alternativa d'Esquerres 3
(3.47%). Official
Generalitat de Catalunya data:
https://bit.ly/2IDJMLd
[Accessed on 08/02/2018; 10:38]
[9]
Approved with 85 Ayes
(CiU,
ERC,
ICV-EUiA y la CUP), 41 Noes
(PSC, PP y C's) and
2 abstentions
(two
CUP
MPs)
[10]
Resolution 742 / IX is dated September 27, 2012 but was approved in
January after the elections. https://bit.ly/2rGrbDT
[Accessed on 08/02/2018; 10:50]
[11]
Except for constitutional or statutory referendums. article s
151, 152, 167 and 168 of the Spanish Constitution.
[13]
Noguera, A. (05/09/2017) Sobre
las garantías del referéndum catalán
y Muñoz, J (04/12/2014) Entrevista a diario El CRITIC:
https://bit.ly/1yvkDWC
[Accessed on 08/02/2018; 12:37]
[15]
Mas,
inhabilitado por desobedecer el 9-N
(13/03/2017) Diario El País: https://bit.ly/2ImBRyR
[Accessed on 08/02/2018; 13:19]
[16]
See
Pacheco,
Jordi (11/02/2013) La
Llei de Consultes: el fil d'Ariadna per sortir del laberint (I).
https://bit.ly/2ImvBqv
[Accessed on 20/03/2018; 11:24]
[17]
Breakdown
of the Parlament
in
seats
(2015): JxS 32 (36.09%), C's 17 (18.84%) PSC 12 (13.67%), Cat Sí que
es Pot 9 (10,13%), PP 8 (8.85%), CUP 7 (8.28%). Official
data:
https://bit.ly/2IkEWiS
[Accessed on 22/02/2018; 11:41]
[19]
“El referéndum será el 1 de octubre y preguntará sobre un Estado
independiente en forma de República”, La Vanguardia,
https://goo.gl/jau1WK
(Last access 6 February 2018).
[20]
“Puigdemont anuncia la fecha y la pregunta del referéndum”, La
Vanguardia, https://goo.gl/YmPxML
(Last
access 6 February 2018).
[21]
“La ley de desconexión catalana, en 19 preguntas y respuestas”,
La Vanguardia, https://goo.gl/bTGci4
(Last
access 6 February 2018).
[22]
Dawn
fom “Referéndum
i desconnexió en dues lleis separades”, Diari ARA,
https://goo.gl/TJka67
(Last
access 6 February 2018).
[23]
Ley de Presidencia de la Generalitat y del Govern, Art. 38.1 Decretos
Ley: https://bit.ly/2IEBrad
[24]
“¿Cuáles son las vías para aprobar las leyes de desconexión?,
ElNacional.Cat, https://bit.ly/2jTofAc,
(Last access 8 February 2018).
[26]
JxSí with
62 seats,
39.54% of
the vote;
plus
CUP
with
10 seatss and 8.21%
of
the vote.
Holding
72 of the 135 seats.
Drawn
from “Autonómicas
Catalunya”, ElDiario.es,
https://goo.gl/DYpE15
(Last
access 8 February 2018).
[27]
“Tirón de orejas del Consell de Garanties a la tramitación exprés
de la ley del Referéndum”, La Vanguardia, https://goo.gl/GnDmye
(Last
access 8 February 2018).
[28]
Opinion of
the Council
of Statutory Guarantees of Catalonia on the Members’
Bill on
the self-determination referendum, 6 September 2017:
https://bit.ly/2rGGixj
[29]
“Tirón de orejas del Consell de Garanties a la tramitación exprés
de la ley del Referéndum”, La Vanguardia, https://goo.gl/GnDmye
(Last
access 8 February 2018).
[30]
El EAC 2006, en su article 76.4 referido a las funciones del CGE: Els
dictàmens del consell de Garanties Estatutàries tenen caràcter
vinculant amb relació als projectes de llei i les proposicions de
llei del Parlament que desenvolupin o afectin drets reconeguts per
aquest Estatut.
d icho apartado fue declarado inconstitucional por la sentencia
31/2010 del TC de fecha 28 de junio. Información:
https://bit.ly/2If0v8w
EAC 2006: https://bit.ly/2rHWX3i
[31]
article 1. Proposició de llei del referèndum d'autodeterminació.
Butlletí Oficial del Parlament de Catalunya, 6 September 2017:
https://bit.ly/2fCbk3z
[32]
article 17.2.
[33]
Extraída de, “El Parlament aprueba la ley para convocar el
referéndum ante los escaños vacíos de la oposición”,
ElDiario.es, https://bit.ly/2IgBQfK
(Last access 13 February 2018).
[34]
Proposición de Ley de Transitoriedad Jurídica y Fundacional de la
República, 28 August 2017, Accessible here: https://goo.gl/JzfZU6
[35]
“Los puntos fundamentales de la Ley de Transitoriedad”,
ElNacional.Cat, autora: Marta Lasalas, https://goo.gl/cZbK2U
(Last
access 13 February 2018).
[36]
article 1. Estat Català, Proposició de llei de Transitorietat
Jurídica i Fundacional de la República, 28 August 2017:
https://goo.gl/JzfZU6
[37]
article 34. Posició Institucional.
[38]
“Los puntos fundamentales de la Ley de Transitoriedad”,
ElNacional.Cat,
Marta Lasalas, https://goo.gl/cZbK2U
(Last
access 13 February 2018).
[40]
Títol VI. Finances.
[41]
Dawn
from
“El Parlament consuma el desafío y aprueba la Ley de
Transitoriedad”, La
Vanguardia,
https://bit.ly/2wMKv4r
(Last access 13 February 2018).
[42]
article 17.2. De l'administració electoral. Proposició´ de llei
del referèndum d'autodeterminació. Butlletí
Oficial del Parlament de Catalunya,
6 September 2017. Available at: https://bit.ly/2IfaI4Q
[43]
Jordi Matas Dalmases is
full professor of Politica
l
Science at the University
of Barcelona
and
chairs the Governing Council of the Centre
d’Estudios d’Opinió (CEO).
[45]
(22/09/2017) “El
Govern demana a la Sindicatura Electoral de l'1-O que es dissolgui
” Ara.Cat: https://bit.ly/2KmjfQ0
[46]
“El desafío independentista catalán, paso a paso: cronología de
un septiembre frenético”, Cadena Ser, http://bit.ly/2Ft51u3
(Last access 30 de enero de 2018).
[48]
“Así se desglosan los 87 millones de euros de la Operación
Copérnico”, La Vanguardia, http://bit.ly/2E201iS
(Last access 30 de enero de 2018).
[49]
“Operación Copérnico: Interior prolonga hasta el 18 de octubre el
despliegue policial”, El País, http://bit.ly/2giOv5Q
(Last access 30 de enero de 2018).
[50]
Communiqué
of the SÍndic
de Greuges de Catalunya, de 26 de septiembre de 2017. Accessible
here: https://bit.ly/2jVJlOI
[51]
“El Govern acredita para votar a 5,3 millones de personas en 2.315
centros en Cataluña”, Cadena Ser, http://bit.ly/2np7NsY
(Last access 30 de enero de 2018).
[52]
“Siete puntos clave para entender qué ha pasado en la mañana del
1-O”, La Vanguardia, https://goo.gl/xmG8bE
(Last
access 1 February 2018).
[53]
Informe
sobre els incidents dels dies 1 al 4 d'octubre de 2017: Pacients
atesos durant la jornada electoral i dies posteriors a conseqüència
de les càrregues dels cossos policials de l'Estat.
Servei Català de la Salut, Generalitat de Catalunya:
https://goo.gl/UVggQG
[56]
“España: La policía utilizó la fuerza de manera excesiva en
Cataluña”, Human
Rights Watch,
https://goo.gl/fccc1T
(Last
access 1 February 2018).
[57]
Ley 29/2014 de 28 de noviembre de Régimen del Personal de la Guardia
Civil, Art. 7: Reglas de comportamiento del Guardia Civil. Accessible
here: https://bit.ly/2IB9YWT
[58]
Ley Orgánica 2/1986, de 13 de marzo, de Fuerzas y Cuerpos de
Seguridad. Capítulo II, Principios Básicos de actuación. Art. 5:
https://bit.ly/2GdkCOw
[59]
Report
on la
Violación
de Derechos Civiles y Políticos: Cataluña. Septiembre y octubre
2017
. Jordi Palou-Loverdos:
. Jordi Palou-Loverdos:
[60]
“España: La policía utilizó la fuerza de manera excesiva en
Cataluña”, Human
Rights Watch,
https://goo.gl/fccc1T
(Last
access 1 February 2018).
[61]
According to a study by the Centro de Investigaciones Sociológicas,
the Catalans regard
the
lack of dialogue between the parties (State-Generalitat) as the third
most
important
problem in Catalonia: https://bit.ly/2IiYtnW
[Accessed on 20/03/2018; 11:37]
[62]
“Lista
de iniciativas a favour del diálogo para resolver el conflicto en
Cataluña
” (04/10/2017) Diario La marea: https://bit.ly/2IgLE9y
[Accessed on 06/02/2018; 13:00]
[66]
http://www.conferenciaepiscopal.es/declaracion-la-comision-permanente-ante-la-situacion-cataluna/
[Accessed on 13/02/2018; 10:20]
[68]
Town
councils ere
summoned for October 7, dressed in white garments "in sign of
peace." See https://bit.ly/2L09d8r
[Accessed on 13/02/2018; 11:43]
[69]
Regulatory positions on whether or not this form of dialogue and
conciliation is correct are
up to the
judgment of each reader.
[70]
“Posicionamiento del Colegio de Politólogos y Sociólogos de
Cataluña a favour de una mediación internacional” (2017):
https://bit.ly/2rKJcBc
[71]
Llamado al dialogo ya la moderación (08/10/2017) The
Elders:
https://bit.ly/2IcKvUd
[Accessed on 27/02/2018; 11:07]
[72]
Whiter now democracy in Spain? (09/10/2017) Carta abierta:
https://bit.ly/2KmunMO
[Accessed on 27/02/2018]
[79]
Índice bursátil español
[80]
From October to December 2017, about 3000 companies moved their
registered
office
outside of Catalonia. “Las
grandes empresas que se han ido de Cataluña”
(13/12/2017) El
País:
https://bit.ly/2rFKyh4
[Accessed on 15/02/2018; 12:43]
[84]
In the report of S & P (12/10/2017), the consequences in economic
matters that the unilateral independence of Catalonia could produce
are explained
in more detail:: https://bit.ly/2IgvoJJ
[Accessed on 15/02/2018;13:19]
[85]
Algunos resultados del estudio de Pimec están Availables en el
portal Vilaweb:
https://bit.ly/2gEezfa
[Consultados el 01/03/2018; 11:39]
[86]
¿Qué
es una sede social y por qué genera tanto ruido un cambio?
(16/10/2017) La vanguardia: https://bit.ly/2gmr4Zn
[Accessed on 15/02/2018; 12:46]
[88]
“Masiva
manifestación en Barcelona a favour de la Constitución y la unidad
de España
” El País. Available at: https://bit.ly/2xrBtZi
[Accessed on 20/02/2018; 10:34]
[89]
It was scheduled for October 9, but the Constitutional Court
suspended the appearance at the request of the PSC. See
https://bit.ly/2Ik7rNw
[Accessed on 20/02/2018; 10:40]
[90]
“La declaración de independencia que duró menos de un minuto”,
El País, https://bit.ly/2jTslIA
(Last access 15 February 2018).
[91]
President Carles Puigdemont’s
complete speech
(10/10/2017): https://bit.ly/2IiCYiN
[Accessed on 20/02/2018; [11:10]
[92]
El documento fue firmado por los grupos parlamentarios JxS y la CUP.
El documento completo: https://bit.ly/2GdAy37
[Accessed on 20/02/2018; 12:05]
[94]
“Rajoy
da ocho días a Puigdemont para que vuelva “a la legalidad””
(11/10/2017). El
Periódico:
https://bit.ly/2IdZmOy
[Accessed on 20/02/2018; 12:57]
[96]
“Rajoy
da ocho días a Puigdemont para que vuelva “a la legalidad””
(11/10/2017) El
Periódico:
https://bit.ly/2IdZmOy
[Accessed on 20/02/2018; 13:09]
[97]
Carta
de Carles Puigdemont a Mariano Rajoy
(16/10/2018)- El País: https://bit.ly/2Ihli7i
[Accessed on 27/02/2018; 11:21]
[98]
Grounded
in the call to the demonstrations of 20 and 21 September (2017).
Trapero was released
with precautionary measures. See https://bit.ly/2gosZzH
[Accessed on 27/02/2018; 12:13]
[99]
Carta
de Mariano Rajoy a Carles Puigdemont
(16/10/2018) Available at El Periódico: https://bit.ly/2rMI00b
[Accessed on 27/02/2018; 12:38]
[100]
Second
Letter from Carles Puigdemont to Mariano Rajoy (10/19/2018).
Available on the El Periódico website:
https://bit.ly/2IeI8AB
[Accessed on 27/02/2018; 12:53]
[102]
The Commission had 27 members: 15 PP, 6 PSOE, 2 Unidos Podemos, 1
PNV, 1 ERC, 1 PDeCat y 1 UPN.
[103]
Letter from Carles Puigdemont to the Senate (26/10/2017). Available
at ElDiario.es: https://bit.ly/2IG9ZZE
[Accessed on 01/03/2018; 14:02]
[105]
Summary of the effects of the declaration of independence, taken
from the article “Proclamada
la República Catalana” (27/10/2017),
Vilaweb:
https://bit.ly/2jVNpOY
[Accessed on 01/03/2018; 14:50]
[107]
“Art 155: así se aplicaría el último recurso del Gobierno contra
el 1-O”, La
Vanguardia,
https://bit.ly/2wHYYm0,
(Last access 15 February 2018).
[109]
Application filed by the Agreement adopted by the Council of
Ministers of the Government of Spain towards the Senate, on October
21, 2017: https://bit.ly/2rIW6PM
As
laid down in article 189.1
of
the Senate rules of prcedure:
«If
the Government, in the cases contemplated in article 155.1 of the
Constitution, requires
the approval of the Senate to adopt the measures to which it refers,
it must submit a
text to
the Speaker
of the Chamber that reflects the content and scope of the proposed
measures, as well as the justification of having made the
corresponding request to the President of the Autonomous Community
and of its non-compliance by
it.»:
https://bit.ly/2IhMpDr
[111]
Proposta de Resolució sobre la Declaració dels representants de
Catalunya sobre l'Independència. Presentada el 27 d'octubre de 2017:
https://bit.ly/2jSCVzE
[112]
Joint
Communiqué
by
Col.lectiu Praga, l'Associació Drets, Servidors Públics de
Catalunya and
Societat Catalana d'Estudis Jurídics on
the complaint about the unconstitutional
use
of
article 155: https://bit.ly/2IiSuuW
[113]
“El Supremo mantiene en prisión a Junqueras, Forn y los Jordis”,
20Minutos.es, https://bit.ly/2IesRj5
(Last access 5 March 2018).
[114]
Auto 20907/2017, Sala de lo Penal del Tribunal Supremo de Justicia,
de 04/12/2017: https://bit.ly/2rFwmVo
[115]
The political groups of the Parliament of Catalonia were unable to
pass an election law, pending since 1980. This vacuum led
the functions of the Electoral Board of Catalonia being
assumed by Spain’s
Central Electoral Board.
[116]
Democracy
Volunteers,
Catalonia Regional Elections - 21 December 2017. Interim Report on
Election Research. Dr. John Ault. 22nd December 2017. Available at:
https://bit.ly/2Cn1T2A
[117] "Observadores Internacionales acusan de falta de neutralidad a la
prensa de Madrid ante el 21-D", ElNacional.Cat, https://bit.ly/2Gc2c0l
(Last access 13 March 2018).
[118]
Report
by
Democracy Volunteers. Reflected
in Graph
1, presented
as Table 1, taken fom the same
document: https://bit.ly/2Cn1T2A
[119]
Ibid., Graph 2
[120]
Ibid., Graph 3
[121]
Table
1, taken
from:
Democracy
Volunteers,
Catalonia Regional Elections - 21st December 2017. Interim Report on
Election Research. Dr. John Ault. 22nd December 2017, página 9:
https://bit.ly/2Cn1T2A
[124]
The results of the 21D elections were extracted from
“Resultados elecciones 2017 en Cataluña”, La
Vanguardia,
https://bit.ly/2Ik0hJ9
(Last access 6 March 2018).
[125]
«La Junta Electoral Central rechaza a observadores internacionales
en las elecciones catalanas», Europa
Press,
https://bit.ly/2rEksLw
(Last access 13 March 2018).
[126]
Informe
de la Misión de Observación
Electoral Limitada de las Elecciones al Parlamento de Cataluña de 21
de diciembre de 2017.
Available at:
ttp://www.observadorsperlademocracia.cat/1/upload/2_declaracia_n_odem_21d.pdf
[127]
Ibid.
[129]
«L'ofensiva de l'Estat no atura el creixement de l'independentisme»,
El Nacional.Cat, https://bit.ly/2rI59Ay,
(Last access 6 March 2018).
[130]
«Resultados
elecciones 2017 en Cataluña», La Vanguardia, https://bit.ly/2Ik0hJ9
(Last access 6 March 2018).
[131]
Informe sobre el vot exterior: Defectes i millores en el procés
electoral del 21 de desembre del 2017, Catalans al Mon:
https://bit.ly/2rFlWFb
[132]
Informe sobre el vot exterior: Defectes i millores en el procés
electoral del 21 de desembre del 2017, pàgina 3, punto B, Catalans
al Mon: https://bit.ly/2rFlWFb
[133]
«El independentismo suma un 54, 15% del voto exterior», La
Vanguardia, https://bit.ly/2rFyBrM
(Last access 6 March 2018).
[134]
“El 21-D dejó 2,08 millones de votos independentistas y una
participación del 79 %”, ElNacional.Cat, https://bit.ly/2D1csc7
(Last access 6 March 2018).
[135] "Resultados elecciones 2017 en Cataluña”, La Vanguardia,
https://bit.ly/2Ik0hJ9
(Last access 6 March 2018).
[136]
Information on the official Ministerio de Asuntos
Exteriores y de Cooperación website (Government of Spain:
https://bit.ly/2rFINAL
[Accessed on 06/03/2018; 10:28]
[137]
In addition, Decree 71/2014, of May 27, established
in Catalonia the Register of Catalan residents abroad, which,
according to Law 8/2017, of June 15, allows
the
Government of Catalonia to
identify
citizens who enjoy the political condition of Catalans and reside
abroad, in accordance with the EAC, facilitating the exercise of
their rights and favouring
the application of the powers of the Generalitat:
https://bit.ly/2n1Lfhq
[Accessed on 06/03/2018; 11:06]
[140]
“La
reforma del voto exterior y el por qué del voto rogado”
(16/12/2015) Publicado en Eldiario.es: https://bit.ly/2IfgfbA
[Accessed on 13/03/2018]
[142]
La ley fue aprobada con el apoyo del PP, PSOE, CiU y el PNV.
[143]
The NGO Marea Granate has published several complaints in its
report “La
"democracia del voto emigrante: una historia de reformas
electorales, ingeniería política y recorte de derechos”
(2015).
[144]
Muñoz, J. (05/07/2017) “La
segona ciutat de Catalunya és l'Hospitalet de Llobregat”
. In
Ara.cat.: https://bit.ly/2wEtDRc
[Accessed on 13/03/2018: 12:37]
[145]
Graph
taken from “Informe
sobre el vot exterior: efectes i millores en el procés electoral del
21 de desembre del 2017”
(2017). Drawn
up by “Catalans
al mon”: https://bit.ly/2rFlWFb
[Accessed on 13/03/2018]
[146]
The distribution of the overseas
vote for this election has already been mentioned: The
pro-independence
vote (JxCat, ERC and the CUP) totalled
14,647 (53.90%) and the "Unionist"
vote
(PP,
PSOE and C's) totalled
12,088 (44.49%).
[148]
Doctoral thesis, Los medios de comunicación como legitimadores o
deslegitimadores de un proyecto político por medio de los frames y
las estructuras narrativas. El caso del Proceso catalán en el
periodo 2006-2015. Ricard Gili Ferré (2017) Universitat Pompeu
Fabra, Barcelona: https://bit.ly/2rFNt8U
[149]
“Els diaris de Madrid i Barcelona exposen relats incompatibles
sobre el procés català”, Racó Català, https://bit.ly/2Ij7VU3
(Last access 23 March 2018)
[150]
Doctoral thesis, Ricard Gili Ferré (2017), ya citada.
[151]
Ibid.
[152]
Ibid.
[153]
We
recommend
the
following article :
“El Mentidero: Catalanofobia; la construcción de un relato”,
CTXT, https://bit.ly/2HaSr4g
[154]
Informe sobre el tratamiento informativo de la jornada del 1'O,
Consell de l'Audiovisual de Catalunya, 11 de octubre de 2017. Reporte
38/2017. https://www.cac.cat/sites/default/files/2017-10/Ac.97-2017%20Tractament%201-O%20COMBINAT.pdf
[155]
Informe sobre el tratamiento informativo de la jornada del 1'O,
Consell de l'Audiovisual de Catalunya, 11 de octubre de 2017. Report
No.
38/2017,
pág. 4. Table
1. https://www.cac.cat/sites/default/files/2017-10/Ac.97-2017%20Tractament%201-O%20COMBINAT.pdf
[156]
“Los activistas contrarios a la independencia han protagonizado 139
incidentes violentos en Catalunya”, “En nom d'Espanya”,
Mèdia.Cat, https://bit.ly/2rEMVkb
(Last access 23 March 2018). In
the articlke there is an infogaph to identify the violent incidents
referred
to.
[157]
Report on the news
coverage
of October
1,
Consell de l'Audiovisual de Catalunya, 11 de octubre de 2017. Report
38/2017, p. 13. Table
11. https://www.cac.cat/sites/default/files/2017-10/Ac.97-2017%20Tractament%201-O%20COMBINAT.pdf
[159]
“Reporters Sense Fronteres denuncia una “atmosfera irrespirable
per a la llibertat d'informació a Catalunya”,
https://bit.ly/2jWBC2Q
(Last access 23 March 2018)
[160]
Informe anual de Reporteros Sin Fronteras sobre la situación de
libertad de información en España: https://bit.ly/2IdWGQR
[162]
According to the Centre d'Estudis d'Opinió baromete, in
2011 the preference for Catalonia to be an independent State was 28%;
by the end of 2017 it was 40%.
[163]
“Masiva manifestación en Barcelona por la unidad de España”, La
Vanguardia, https://bit.ly/2xrjna5
(Last access 2 de mayo de 2018)
[164] Its chief promoters are Carla Arrufat, of the "Plataforma
per l'Autonomía
de Barcelona" and the playwright Albert Boatella, one of the founders of Ciudadanos.
[165] "¿Qué es Tabarnia, la ocurrencia que critica el independentismo
catalán con otro movimiento independentista?" (26/12/2017). ElDiario.es: https://bit.ly/2rEChdw
[Accessed
on 27/03/2018; 12:36]
[166]
“Los mossos cargan para despejar la salida de los guardias civiles
de la consellería de Economía” (21/09/2017). 20minutos.es:
https://bit.ly/2rFmydX
[Accessed on 27/03/2018; 11:11]
[167]
“Arran
pinta la sede del PP de Sabadell y acusa la formación de
“fascistas”” (10/04/2017) ElNacional.cat:
https://bit.ly/2IeIQ0C
[Accessed on 27/03/2017; 11:04]
[169]
Informe
sobre els incidents dels dies 1 al 4 d'octubre de 2017: Pacients
atesos durant la jornada electoral i dies posteriors a conseqüència
de les càrregues dels cossos policials de l'Estat.
Servei Català de la Salut, Generalitat de Catalunya:
https://goo.gl/UVggQG
[170]
“Barcelona
clama por la liberación de los “presos políticos” y reivindica
la legitimidad de Puigdemont”
(11/11/2017) ElDiario.es: https://bit.ly/2wBdw6Y
[Accessed on 27/03/2018; 11:53]
[171]
“Llarena
envía a la prisión a Turull, Rull, Romeva, Forcadell y Basa”
(29/03/2018). ElNacional.Cat: https://bit.ly/2jVPhas
[Consultado 27/03/2018; 11:50]
[172]
“Carles
Puigdemont
compareixerà davant la justícia alemanya després de ser detingut
quan viatjava a Brussel·les
” (25/03/2018): https://bit.ly/2KZOpgZ
[Accessed on 27/03/2018; 12:00]
[173]
“Manifestaciones
y disturbios en las calles de Barcelona tras la detención de
Puigdemont”
(25/03/2018): https://bit.ly/2IEblEo
[Accessed on 27/03/2018; 12:06]
[174]
“Carles
Puigdemont
compareixerà davant la justícia alemanya després de ser detingut
quan viatjava a Brussel·les
” (25/03/2018): https://bit.ly/2KZOpgZ
[Accessed on 27/03/2018; 12:00]
[175]
Dos juzgados que a la vista de muchos expertos no deberían ser
“competentes” en esta causa. Sobre este tema, “Juristas
afirman que hay "presos políticos" en España y exigen su
inmediata liberación”
(21/11/2017). El Diario.es: https://bit.ly/2L1RtJM
[Accessed on 23/03/2018; 13:25].
[176]
We also study the charges laid
against
the leaders of the sovereignty process, in section "Judicialization
of politics"
of this report.
[177]
Complete
text
of the court resolution detaining
Jordi
Cuixart and
Jordi Sánchez: https://bit.ly/2IBDVWW
[178]
Fragment
of
the court resolution, recovered from “El
Supremo aleja la posibilidad de que Junqueras, Forn y 'los Jordis'
salgan de la cárcel antes del juicio por el 1-O”
(02/02/2018)
El Diario.es:
https://bit.ly/2KZffpH
[Accessed
on 23/03/2018; 15:24]
[181]
Recuperado de Javier Pérez Royo (08/11/2017) “No
son presos políticos, pero lo parecen”.
El Diario.es: https://bit.ly/2rB3jCv
[182]
Recuperado de Joaquín Urias (03/02/2018) “La ideología de los
presos catalanes”. El Diario.es: https://bit.ly/2Ge60OS
[183]
Es una adecuación parcial de la hipótesis central de Epstein, Lee,
Daniel E. Ho, Gary King y Jeffrey A. Segal. 2005. The
Supreme Court during crisis: How war affects only non-war cases.
New
York University Law Review
80(1): 1-116, que estudia una amplia cantidad de decisiones
judiciales de la Corte Suprema estadounidense (aproximadamente seis
décadas) relativas a derechos civiles y libertades, para identificar
el efecto de la crisis (relacionadas principalmente con las guerras)
en la constricción de derechos y libertades. A pesar de las
limitaciones de este objeto de estudio, parte del marco teórico y la
segmentación de la naturaleza de las crisis presentadas, permiten
exponer las bases analíticas de esta sección.
https://bit.ly/2Igs8Oe
[184]
¿Qué es el delito de sedición? Así lo regula el Código Penal, El
Periódico, https://bit.ly/2jSKMNw
(Last access 20 March 2018).
[185]
Ibid.
[186]
“Entrevista a Montserrat Comas d'Argemir (JJpD), En Catalunya no ha
existido la violencia que requiere el delito de rebelión”,
ElDiario.es, https://bit.ly/2IGpdxK
(Last access 20 March 2018).
[187]
Art. 14, Constitución
de España.
Los
españoles son iguales ante la ley, sin que pueda prevalecer
discriminación alguna por razón de nacimiento, raza, sexo,
religión, opinión o cualquier otra condición o circunstancia
personal o social.
Art.
23.1
Los
ciudadanos tienen el derecho a participar en los asuntos públicos,
directamente o por medio de representantes, libremente elegidos en
elecciones periódicas por sufragio universa
l.
[188]
Petición de la representación legal de Sánchez ante el auto de
Llarena: https://bit.ly/2KkhJxD
[189]
(25/03/2018) “Un comité de la ONU insta a España a garantizar los
derechos políticos de Jordi Sànchez” El País:
https://bit.ly/2GcKxWB
[190]
“Prevaricación contra la democracia”, Javier Pérez Royo,
ElDiario.es, https://bit.ly/2wI0OmU,
(Last access 20 March 2018).
[191]
“Prevaricación contra la democracia”, Javier Pérez Royo,
ElDiario.es, https://bit.ly/2wI0OmU,
(Last access 20 March 2018)
[192]
“El PP reforma el Consejo General del Poder Judicial a su medida”,
El País, https://bit.ly/2wEGQJt,
(Last access 22 March 2018)
[193]
“Gallardón coloca a España a la altura de Irán en independencia
judicial”, Libertad Digital, https://bit.ly/1eJMf0h
(Last access 22 March 2018)
[194]
Ley Orgánica 15/2015, de 16 de octubre de [reforma
de] la
Ley Orgánica 2/1979, de 3 de octubre, del Tribunal Constitucional,
para la ejecución de las resoluciones del Tribunal Constitucional
como garantía del Estado de Derecho. BOE
núm. 249 de 2015: https://bit.ly/1WQfcyE
[195]
“Cinco claves de la reforma del Constitucional”, Diagonal
Periódico,
https://bit.ly/2L1n4LA
(Last access 23 March 2018).
[196]
“Comunicado sobre las injerencias políticas en el Poder judicial y
en el Tribunal Constitucional”, 5 February 2018, Juezas y Jueces
para la Democracia: https://bit.ly/2o6xL4R
[198]
“Comunicado sobre las injerencias políticas en el Poder judicial y
en el Tribunal Constitucional”, 5 February 2018, Juezas y Jueces
para la Democracia: https://bit.ly/2o6xL4R
[199]
Informe 2017/2018, Amnistía Internacional, “La situación de los
derechos humanos en el mundo”: https://bit.ly/2JPByO4
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