Independence supporters gather outside Catalonia’s government buildings. Photo by Jeff J. Mitchell/Getty Images.
Barcelona, October 27, 2017. Parliament proclaims Catalonia’s independence. They end their session with a round of the Catalonian national anthem,
joined by the thousands of people gathered outside. This anthem, “The Reapers,” recalls the first of several armed
struggles to preserve Catalan law. After Madrid’s swift reaction last Friday to dissolve the Catalan Parliament and
prosecute its presiding officer along with the region’s president and cabinet, this may turn out to be the shortest
republic in history.
This isn’t the first time Spain has rebuffed Catalonian attempts at independence. In 1641, 1931 and 1934, Catalans tried
to set up their own state. The last time they proclaimed a republic, albeit within a federal Spain, Madrid sent the army
and put the entire government behind bars. It was October 6, 1934. After the Popular Front won the general elections in
February 1936, the new government pardoned the prisoners and reinstated them. But five months later a conspiracy of
generals and the ruling classes launched a coup d’état and began the Civil War.
Most Spaniards today are unaware that recognition of the Catalan government predates the Spanish constitution.
Thus came the 36-year-long dictatorship of General Francisco Franco. Although an ally of Hitler and Mussolini, Franco
kept Spain out of WWII. The Allies rewarded his formal neutrality and visceral anti-Communism by allowing him to remain
in office. The United States propped up his shaky government with economic aid in exchange for setting up military bases
on the Iberian Peninsula. Their continued existence and geopolitical importance explain the State Department’s swift
expression of support for Prime Minister Mariano Rajoy’s plan to beat Catalonia back into submission.
During the Franco decades, Catalans were deprived of political rights, their language was persecuted and their culture
annihilated. When the dictator died in November 1975, the regime was badly in need of repair. The shrewdest Francoists
understood that legitimation hinged on recognizing Catalonia’s specificity. The man who led the dictatorship out of its
labyrinth, Adolfo Suárez, brought back Catalan president Josep Tarradellas from exile and restored the regional
government to defuse the explosive Catalan question. After singularizing Catalonia in this way, the transitional
government multiplied the number of “autonomous communities” using a process comparable to gerrymandering. In this way
the state hoped to dilute Catalan singularity in a homogeneous and self-limiting system of seventeen provincial
Most Spaniards today are unaware that recognition of the Catalan government predates the Spanish constitution. The fact
that the constitution rests on the prior agreement between the Spanish government and the legitimate representative of
the Catalan republican government is the reason why Rajoy may not shut down the Catalan institutions without reverting
to the pre-constitutional regime. But although he may not shut them down, he and his predecessor, José María Aznar, have
steadily pursued a policy of disemboweling the Catalan government by neutralizing its statutory competences and
smothering its finances.
With the referendum of independence Rajoy found at long last the desired opportunity to deal Catalan self-government the
final blow by “decapitating” (his term) the Parliament and running it from Madrid. This and no other is the reason why
last Thursday, Rajoy refused to stop application of article 155 in exchange for President Puigdemont’s offer to hold
regional elections. By refusing to realize then and there the alleged goal of his invocation of article 155 (namely
restoring statutory normality), Rajoy and his hard-liner Deputy Prime Minister Soraya Sáenz de Santamaría gave away
their real goal. They both saw the conflict as an opportunity to complete their party’s recentralizing mission by
seizing not only the Catalan institutions of government but also the public media.
In one fell swoop, they snatched the coveted Catalan system of education. It is not long since Minister of Education
José Ignacio Wert proposed
a law to “hispanicize” Catalan schoolchildren. Last week’s shrill allegations
that Catalan schools teach children to hate Spain previewed the implementation of an education system with the spirit
of Wert’s project.
Spanish nationalists are so keen to revert to Franco-era control that they hardly bother to conceal their intentions. On
Sunday, Albert Rivera, leader of the ultra-nationalist anti-Catalan party Ciudadanos, exulted that the December snap
election gives Spaniards “a once in a lifetime opportunity to put an end to [Catalonian] nationalism.”
The state’s take over of Catalonia proceeds like a well-oiled machine, with the Spanish and a few Catalan media
providing the framing and centralist parties the tools to implement an undeclared state of exception. Catalans of all
persuasion must navigate between two contending legalities. Officialdom—that is, heads of state, the spokespersons for
the EU, the State Department, and the media that echo the directives of realpolitik—describe the contest of wills in
sharp tones of legality versus illegality. To put things in such terms is to give short shrift to a complex situation.
It is to ignore that laws can be oppressive and not meet with the consent of the governed. Laws, to be effective, must
also be legitimate. A constitution obliges only to the extent that it elicits consent. And if its gatekeepers abuse it,
they ruin it along with the state that it was meant to support.
To dispute the validity of the referendum on grounds of illegality disregards the fundamental questions of what or who
makes a law legitimate.
Secession is not a priori illegitimate, as spokesmen for the status quo mechanically assert. Secession must ride on a
wave of popular consent, and consent is at the heart of the narratives for and against the Catalan resolution. To
dispute the validity of the referendum on grounds of illegality disregards the fundamental questions of what or who
makes a law legitimate, of whether there is a higher law than the law of the state. Does international law, which
enshrines the principle of self-determination, trump the right of states to use all necessary means for
self-preservation? Is the state coterminous with the territory it is capable of ruling? Does its jurisdiction, its
right, cease where its law fails to provide justice and to elicit respect? How does law evolve with ethical demand and
supersede itself by mutating to higher levels of freedom?
Unquestionably, the Catalan referendum was contrary to the Spanish constitution. Yet, the October 1 referendum was held
according to a law formally passed by the Catalan Parliament. This law is “illegal” only by virtue of being struck by
the Constitutional court. This action called into question the principles of democracy, and for Catalans, it
delegitimizes the court’s jurisprudence. It is to this court, in fact, that the origin of the present drama must be
In 2006, Rajoy, then leader of the opposition in Congress, dealt a blow to coexistence by attacking the Catalan Statute
of Autonomy. After this organic law had been endorsed by Congress and approved by popular referendum, Rajoy mobilized
his party to collect signatures
“against Catalonia.” Then he impugned the statute at the Constitutional court, a body stuffed with justices appointed
by his party, some with expired terms. After four years, the court ruled against the text, striking entire paragraphs
and suppressing articles that were admitted in the statutes of other regions. The resulting bill of rights turned out to
be more restrictive than the previous one had been. This undignified behavior by the arbiters of the constitution made a
mockery of legal process and set the stage for the present standoff.
By abusing this system, the Spanish government has paralyzed the Catalan legislation, reducing autonomous governance to
a cosmetic façade.
In 2015 Mariano Rajoy used his majority in Congress to change the Constitutional court from an interpretive body to a
penal one, with the blatant intention of giving the court the power to depose the Catalan president. Until then, a
president could only be removed by a vote of confidence or though elections. Relying on the courts to execute his
decisions, Rajoy made a habit of blocking Catalan legislation and criminalizing his adversaries. In the last few years, the Constitutional court has repealed twenty-five laws passed by the Catalan Parliament: a law barring utilities companies from cancelling service to the poor; a law on gender equality; one on levying a tax
on the energy companies; another on taxing the banks; a law to protect the needy from eviction; a law on social
security; one against fracking; another to fund the cultural industries, etc. The moment a law is impugned, it is
automatically suspended. In Spain it can take years for the court to pass a resolution. By abusing this system, the
Spanish government has paralyzed the Catalan legislation, reducing autonomous governance to a cosmetic façade.
For some time, the Spanish government has intentionally smothered Catalan finances, blaming the collateral damage on the
alleged misuse of funds by the Catalan administration. In June 2016, former minister of the Interior Jorge Fernández
Díaz was heard on tape plotting with Daniel de Alfonso, director of the Anti-Fraud Office of Catalonia, to fabricate
corruption reports on Catalan leaders. The false reports were to be leaked to the press, said the minister, to give the
state prosecutor a pretext to file charges. A nervous De Alfonso, arguing the success of the “state sewers” activities,
saying to the minister: “We have ruined their [the Catalans’) health system, we are busting their Center for
Telecommunications and Information Technologies…. I am Spanish before anything else.”
Cultivating scarcity and decapitalizing the Catalan economy are strategies calculated to elicit the very outcome that
Rajoy feigns to deplore. In the weeks since October 1, hundreds of companies have transferred their registered offices
out of Catalonia. Like a firefighter arsonist, he not only passed a decree to facilitate such removal, but persuaded
many to do so in order to create the perception of economic catastrophe. So far, this strategy has only had
psychological effect. For the last quarter, unemployment was significantly lower in Catalonia, and it remains
considerably below the Spanish average. But psychology is an important factor, and Madrid’s ill-disguised desire to
evoke the specter of economic meltdown in Catalonia could end up self-fulfilling.
Rajoy’s dissolving the Catalan Parliament and calling for snap elections a few days before Christmas opens an uncertain
scenario of conflicting legalities. It is a double-edged challenge. Can the Catalan Republic endure the onslaught of
article 155 without commanding its own police and without access to its bank accounts, frozen by Spain’s finance
minister? On the other hand, can an imposed, statutorily illegal election be credibly held? How can it even be seriously
considered a settlement of the question when the vice-president of the Senate announces that, if pro-independence
parties win the election, the Spanish government will invalidate it by re-applying article 155?
If the Spanish government conditions the election to install a government of its liking, how will it govern the region
without the consent of the majority of its population? There are obvious dangers to imposition. Social unrest could
drive the yield of Spanish bonds to an unsustainable level, pushing the country to the brink of default and opening a
bigger gap on the EU’s leaking vessel than it may be able to withstand. It is unlikely that the EU will sit on the fence
for long. Although it has come out unmistakably on the side of Madrid, diplomacy may in fact be already underway behind
closed doors. There is no other explanation for Rajoy’s soft-pedaling of 155 since last Saturday.
They are the smoking gun of Spain’s regression to the era of political persecution.
One possibility out of the impasse would be for Spain to guarantee a free election, and for the pro-independence parties
to participate, possibly turning it into a constituent election. If voters revalidate a majority for independence, this
would clear the doubts about the legitimacy of the results of the October 1 referendum, shielding the virtual republic
from the charge of insufficient support. But for such a scenario to play out with any semblance of inclusiveness, Rajoy
would have to halt the prosecution of the Catalan leaders and release the political prisoners he has held as hostages
since October 16. Jordi Sánchez and Jordi Cuixart, pacifist leaders of peaceful demonstrations could not be honestly
charged with violent disruption. For this reason, the judge who ordered preventive prison without bail had to turn to
the pre-democratic Francoist legislation in order to substantiate her politically motivated decision. Rajoy needed
scapegoats, and someone had to pay for his failure to stop the referendum. Amnesty International condemned their arrest
and demanded their release. They are the smoking gun of Spain’s regression to the era of political persecution.
One week after the 40th anniversary of the return of President Tarradellas from exile, President Puigdemont, charged
with sedition and the threat of a 30-year sentence, left Catalonia today accompanied by members of his cabinet. His
current sojourn in Belgium, whose interior minister yesterday suggested the possibility of granting him political
asylum, may prove to be a long one. Forty years was roughly the time Tarradellas spent in exile. Could 40 years also
mark the end of a historical cycle, with the Spanish regime of 1978 drawing to a close, as political persecution is
normalized, the far right spreads violence to the streets, and Spain, as often in the past, sends another wave of
Catalans into exile?
This article was originally published by the Freeman Spogli Institute for International Studies at Stanford University
and is available here
Faculty views expressed here do not necessarily represent those of the Freeman Spogli Institute for International
Studies or Stanford University, both of which are nonpartisan institutions.