The key aspects of Catalonia’s transitional law

BarcelonaOn Monday at noon pro-independence coalitions Junts pel Sí (JxSí) and the CUP unveiled Catalonia’s bill of legal transitoriness in parliament. The bill, which aims to regulate the transition from Spain’s legal framework to an independent Catalonia’s, will only be enacted after a Yes win on the independence referendum slated for October 1. The CUP and JxSí expect the drafting of a definitive Catalan Constitution to take up to one year.

The majority secessionist forces explained that while drafting the bill (which has 89 articles and 3 temporary dispositions) the emphasis was on “the principle of continuity”, as it is only meant to be applicable during the transition period. Still, they stressed that this rule would be the “highest-ranking” law in the legal system —above the Statute and the Spanish Constitution— if independence supporters win the referendum. According to the CUP and JxSí, the main pillars of the new country must be determined during the constituent process that will follow a Yes win.

Below are the key aspects of the transitional law:

Form of the state

The first section of the bill defines the Catalan state “as a democratic, social republic, under the rule of law”. It establishes its territorial boundaries, as well as the maritime and air space under its sovereignty. A provision is made for the government to guarantee customs control and inclusive border security. The law-makers explained that they have prioritised the “continuity” of the existing legal framework and the bill clearly states that Catalonia will abide by EU legislation and international treaties. By the same principle, the Aran valley is granted a special deal.

Nationality

The bill establishes two ways by which the Catalan nationality may be obtained: by birth or by acquisition. By birth means that any Spaniard who has resided in Catalonia since 31 of December 2016 will automatically become a Catalan national. After independence, anyone born in Catalonia will automatically be a Catalan. Being a Catalan national will be compatible with holding other nationalities, including Spain's. Still, this matter will ultimately depend on the agreements signed with Spain and other countries.

In order to become a Catalan, a single five-year period of legal residence in Catalonia will be required to acquire the citizenship. A change from Spanish law is that fact that a distinction between EU and non-EU foreigners is no longer made. In the current Spanish legislation, which CUP MP Salellas called “racist”, a distinction is drawn between EU nationals, citizens of non-EU countries and non-EU nationals from former Spanish colonies.

The Head of State

The President of the Generalitat would become the head of state and lead the government. The king of Spain and the Spanish government would no longer have any powers over Catalonia. Puigdemont and the rest of his cabinet would be granted immunity and only the new Catalan Supreme Court could decide to put them on trial.

The decision to have a president of the Republic separate from the head of the government would be made during the constituent process. Assuming Yes won on October 1, Puigdemont would hold both positions in the interim.

Language and basic rights

The transitional law establishes that both Catalan and Spanish will be the official languages, with the same rights as today. However, the law-makers think that the role of the two languages will need to be defined during the constituent process.

The law recognises the basic constitutional rights and those recognised by the EU’s human rights charter. On this point, MP Benet Salellas remarked that broader rights will be recognised and, with the enactment of this piece of legislation, legal action will be possible on the grounds provided by those rights. An example of that would be the right to a home.

In terms of social services, the bill establishes that anyone who is currently on benefit —such as unemployment or retirement pensions— will continue to receive that benefit after the proclamation of independence.

Succession of regulations and contracts

The transitional law establishes that the succession of regulations and the subrogation of contracts. In other words, it determines what institutions will take over from the Spanish administration in Catalonia. The same is expected with the subrogation of contracts, which will be given continuity. That is to say, all contracts between the Spanish authorities with suppliers that concern Catalonia will be taken over by the Generalitat under the same conditions.

Civil service

The bill establishes that all public employees of the Generalitat prior to independence will continue to be so afterwards. As for the Spanish administration’s employees who are based in Catalonia, the law will allow them to join the Catalan administration with the same working conditions and remuneration.

Courts of law

The transitional law establishes that the duties currently undertaken by the Supreme Court will be taken over by the current Hight Court of Justice in Catalonia. This court of law would be at the top of the judicial system, which would keep the current branches: civil, social, administrative and criminal. The military court is dropped and a court of constitutional guarantees is added.

Junts pel Sí and the CUP expect the new court of constitutional guarantees to take over the current duties of Spain’s Constitutional Court. The present structure of the judiciary would be kept in place, as would the current judges, who would keep their salary. This new judicial system would be governed by a branch of the Supreme Court, which would perform the same job as today’s General Council of the Judiciary (CGJ), and a joint committee with officials from the Catalan Ministry of Justice.

According to Salellas, all its members would be judges, unlike today's CGJ: all the senior judges of the Supreme Court, plus five others elected by an outright majority in parliament.

Council of Democratic Guarantees

Besides the court of guarantees of the Supreme Court that would deal with appeals following a breach of basic rights, the law maintains the current duties of the Council of Statutory Guarantees, except its rulings would now be binding. The name of the Council would change to Council of Democratic Guarantees and it would be tasked with ensuring that draft legislation adheres to the new legal framework, at the top of which would be the transitional law. Its members would be appointed as they are nowadays, as per the Catalan Statute.

Public Prosecutor

The law-makers have brought in a number of changes regarding the public prosecution. While at present the State’s General Prosecutor is appointed by the Spanish government and reports to the Ministry of Justice, the transitional law establishes that the Prosecutor will be proposed by the government but appointed by the parliament, although the bill does not state the majority required for that.

Amnesty

Considering the likely clash with the Spanish state in order to hold the referendum and enact the new law in the event of a Yes win, Junts pel Sí and the CUP have included provisions for an amnesty for all individuals prosecuted or found guilty in the process. The draft bill states that “Judges and courts of law will drop or reverse all criminal charges against individuals prosecuted or found guilty of actions conducive to holding a vote on Catalan independence or the creation of a Catalan state in a democratic, peaceful manner”. On this point, CUP MP Benet Salellas made it clear that no corruption cases will ever be declared null.

A single tax authority

“The Generalitat is the single authority that levies all taxes in Catalonia, as well as contributions and all obligations to do with the social security and welfare system and any other public income, notwithstanding the powers granted by law to local governments”. That is the wording of article 80 of the transitional law. Therefore, the Catalan government is committed to preventing Spain’s tax office from having any role in Catalonia. All Spanish tax office employees will get a chance to join the Catalan administration. Anybody on benefit, including unemployment and pensions, will be guaranteed the same income by the Generalitat.

Electoral Syndicate

The law of the referendum made it abundantly clear that Spain’s Electoral Committee would cease to supervise and monitor elections in Catalonia. The law of legal transitoriness takes it one step further and establishes a scenario after the independence vote where the Electoral Syndicate —which will be operating provisionally for the referendum— is granted further powers and becomes the main body of election monitoring. Instead of the five members expected for the independence vote, the Syndicate will consist of seven permanent members, most of whom will be lawyers, although it may also include political scientists and experts. There will be at least two judges and the parliament will appoint them for single 7-year term.

Each of the four Catalan provinces will have its own syndicate, ahead of the referendum on October 1 (1-O). Later, there will be one per county. Special provisions will be made for the valley of Aran. The Electoral Syndicate will the highest-ranking body of electoral monitoring, but once exhausted all administrative appeals, further appeals may be filed with Catalonia’s Supreme Court.

Constituent process

Once the referendum result has been officially announced, two days after the vote, the referendum law establishes that independence will be proclaimed. That is when Junts pel Sí and the CUP expect the law of legal transitoriness to come into effect and the constituent process to be activated. The law establishes a six-month period during which people must voice their opinion on how the new state must organise itself. The process will culminate in the drafting of conclusions that will bind the executive power.

Then constituent elections will be held under the existing electoral law so that members of a constituent assembly may be elected. This assembly will have the same number of representatives as the parliament and will be tasked with drafting a new constitution based on the results of the participatory phase.

The new constitution will need to be approved by a majority of three fifths in parliament or, at the very least, by an absolute majority. Afterwards it will be put to a referendum.

All in all, Junts pel Sí and the CUP expect a one-year period from the referendum to the end of the constituent process.