The pro-independence movement embarked on the breakaway process with lofty expectations, but now finds itself forced to follow the advice of the 17th-century writer and philosopher Baltasar Gracián, who recommended living for the moment, refraining from exaggeration, and trying not to strain things to the breaking point.
Article 155 of the Constitution, which the government is on its way to activating – with support from the Socialist Party (PSOE) and Ciudadanos – is not the end of the world, and it offers different opportunities for reaching non-dramatic outcomes. This precept, which is fortunately included in our Constitution, provides all possible guarantees and allows the autonomous region to deactivate the conflict.
Starting with the opportunity offered by the government’s official request of October 11 (demanding confirmation of whether independence has been declared in Catalonia or not), it would be enough to answer the question negatively for the situation to quiet down. On the other hand, the regional government could turn to the Constitutional Court alleging a conflict of powers, so the latter might determine whether there was a legal basis for the official request to have been made in the first place.
Because if the breaches that Catalan authorities are accused of turned out to be more apparent than real, as though the product of a bad dream, then the molt honorable president (most honorable premier Carles Puigdemont) like a latter-day Segismundo, Prince of Poland in Life Is A Dream, could then confront King Basilio, not on the battlefield (which is no longer in style) but inside a courthouse.
Even after the Senate’s approval, there would be one last chance to prevent the measures from being applied
But even if the molt honorable president were to confirm the declaration of independence, the die would not be cast yet, because the regional government would retain the right to be heard and to participate actively in the procedure that would begin in the Senate to deliberate and decide on the government’s proposed measures.
The procedure would begin with the General Committee of the Autonomous Regions – with participation by other regional premiers – or else with a joint committee made up of members of two or more Senate committees (perhaps the Constitutional and Interior committees).
It seems appropriate, in any case, that the molt honorable president should represent his region on such a momentous occasion, because at play would be a temporary restriction or intervention in the region’s autonomy. Intelligent and efficient transactions might possibly emerge within the seat of the Senate, which is decorated with so many historical paintings – some of which represent illustrious Catalans, such as the portrait of Don Juan Prim made by Luis de Madrazo, while others evoke epic moments in Catalan history, such as Roger de Flor’s entrance into Constantinople, painted by Moreno Carbonero. Because the committee’s decision can go beyond accepting or rejecting the government’s proposals, and actually introduce conditions or amendments to those projected measures.
If the measures were finally carried out, the region would not be facing anything like a dictatorship
In any case, those measures could only be approved with the favorable vote of an absolute majority of senators at a plenary session where, if 50 senators requested it, there would be a roll call vote. And the region in question would also have the right to be represented at the plenary debate (even if the rules do not expressly say so), and it would certainly seem appropriate for the molt honorable president to take this opportunity to defend his cause from the lectern. The entire nation would hang on his every word, which would resonate in the collective memory in a much more durable way than a confusing independence declaration that is doomed to fail.
Even after the Senate’s approval, there would be one last chance to prevent the measures from being applied, if the molt honorable president were to retract his declaration of independence, and other breaches, before the Cabinet encoded the measures into royal decrees. Because those measures are a regulatory product whose validity emanates from their approval by the upper house, but whose effectiveness depends on the royal decrees that incorporate them, so that if the molt honorable president were to comply with Madrid’s official request at the 11th hour, then surely the government would reconsider the need to implement the measures.
If the measures were finally carried out, the region would not be facing anything like a dictatorship, but the expression of a ‘law of exception’ that our Constitution incorporated in order to deal with serious breaches committed by regional powers, especially if these breaches endanger the efficiency of the legal system as a whole, as has been the case with Catalonia.
Intelligent and efficient transactions might possibly emerge within the seat of the Senate
But even this ‘law of exception’ would be subject to constitutional checks, so that any measures adopted by the government with the Senate’s approval could be challenged before the Constitutional Court using the channels in place to ensure that laws and other legally binding regulations comply with the Constitution. On the other hand, any instructions that might be dictated by the government in order to execute those measures (Article 155.2) may also be challenged, this time in the lower courts because they will not have the force of law. In short, the checks inherent in any rule of law will not be suspended because Article 155 has been applied.
On the other hand, even though this precept theoretically offers a broad scope of action, the government must abide by the principles of necessity, adequacy and proportionality. As such, considering the circumstances of the challenge posed by Catalan authorities, it seems like there are at least three measures that respect all those principles.
The first is to dissolve the regional parliament and call a snap election, because the current legislature has repeatedly approved laws that are grievously unconstitutional, in the process violating the procedures established by the regional parliament’s own regulations and by the Statute of Catalonia.
The second is to remove the Catalan premier from power, since it would be difficult to justify his presence in the post if it is confirmed that he declared Catalan independence. The third is for the central government to take over public safety in the region, because the Catalan government’s contumacious breaches of the law make it unfit to head the regional police force, the Mossos d’Esquadra, a fact that has become evident in recent days.
But out of those three measures, the main one – because it can provide a political way out of the conflict – is the first one. And so, it is ultimately up to the molt honorable president to prevent the application of Article 155 of the Constitution, by dissolving the regional parliament and calling new elections.
Miguel Satrústegui is a tenured professor of Constitutional Law at Carlos III University in Madrid.
English version by Susana Urra.