The constitutional crisis persists

Catalan nationalism showed that it wasn’t strong enough to prevail, but it could rock the boat

JAVIER PÉREZ ROYO Professor of Constitutional Law (University of Seville)

I am not aware of a single history book on the American Civil War that blames the conflict on the Supreme Court’s landmark decision in the case of Dred Scott v. Sandford. Likewise, I know of none where that same ruling isn’t mentioned as the trigger of the war. The Supreme Court did not cause the war, but it did contribute to its outbreak. The constitutional system had to be re-invented.

While you can only take the comparison so far, I am convinced that when the crisis of Spain’s 1978 constitutional system is analysed, nobody will blame the 2010 ruling by the Constitutional Court [that watered down the Catalan Statute]. However, everyone will agree that the ruling triggered a general crisis that led to a re-thinking of the political system, something which is unavoidable.

The political system borne out of the 1978 Spanish Constitution stopped working not immediately after the 31/2010 ruling, but two years later. At first it seemed as if only ERC and the Catalan socialist party would bear the brunt of the ruling in Catalonia, with the PSOE left to pick up the pieces in Spain. The downfall of the PSC-PSOE and ERC in the Catalan elections in autumn of 2010 would be compensated by a landslide CiU victory. Equally, the PSOE’s complete defeat in the regional and local elections in May and the general elections in November would greatly benefit the PP. From a constitutional viewpoint, the crisis seemed manageable. The left would have to purge its sins, as the right had to do in the 1980s, when the UCD disappeared, but that would be the extent of it.

After the Catalan National Holiday of 2012, it became increasingly apparent that things would pan out rather differently. When Catalan nationalism, represented by CiU, transitioned from devolution to independence, it effectively rejected the “constitutional bloc” as a means for Catalonia to find its place in Spain. They proposed to stage a referendum that would embody this rejection, and such a vote has been held twice, but without practical effect. Catalan nationalism showed that it wasn’t strong enough to prevail, but it could rock the boat of the 1978 Constitution.

Catalonia has been mired in this politically destabilised system since 2012 and was joined by Spain in May 2014 when, following the European elections, king Juan Carlos abdicated the throne. This was exacerbated by the local and regional elections of May 2015 and the general elections in December that year.

The governability crisis has been mostly kept in check in local and regional governments, where they have managed to install new governments, albeit with some difficulty. However, this has been impossible in Catalonia and Spain. The last three administrations in Catalonia (Artur Mas in 2012, Carles Puigdemont in 2015 and Quim Torra in 2018) and the activity of the Catalan parliament in those three terms will go down in history books as the exact opposite of what a parliamentarian system is meant to be.
Now, despite all the hurdles, Catalonia has managed to elect a president and avert a snap election, unlike in Spain in 2016 and —more than likely— in November this year. As expected, Catalonia’s ungovernability —triggered by the 2010 ruling— has led to a governability crisis in Spain. Spain cannot govern itself democratically unless Catalonia is allowed to rule itself; that is, to rule itself in accordance with a formula based on the Constitution and the Statute that is widely accepted by the people, not with a formula imposed by Madrid against the will of the people as expressed in a referendum.

This formula vanished with the 2010 Constitutional Court ruling. It is formally still in place, but not de facto. Hence Catalonia’s ungovernability and the resulting ungovernability of Spain. We are still where we used to be. Catalonia’s fit within Spain remains the constitutional conundrum which will continue to make democracy impossible in Spain until it is resolved. The 1978 Constitution included a formula, a pact between the Catalan and Spanish parliaments followed by a referendum, which worked fine from 1980 to 2010 but was shattered by the 2010 ruling that rendered the pact void and ignored the result of the Catalan referendum on the new Statute.

Formally, only Catalonia was hit by the crisis. Materially, it meant a state crisis. And that’s where we remain.

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