On June 18, Catalonia is set to vote on a new Autonomy Statute, one that promises to increase the amount of power devolved to Catalonia from the central government in Madrid. Thuis Autonomy Statute is meant to replace the one currently in place, that dates from 1979, that gave Catalonia a measure of autonomy is fiscal, language and local governance matters, at least internally. Among the greatest proponents of the new Autonomy Statute are the Socialist, Independence, Green and United Left parties of Catalonia. These parties have combined their informational efforts to produce a number of pamphlets and other documents designed to sway the general electorate.
One publication lists ten reasons why Left, Green, and Independence party people ought to vote for the new Autonomy Statute (D’Esquerres, Catalanista I Ecologista, Sí a L’Estatut, June 2006). They are worth describing if only to get a sense of the sort of arguments that are being deployed now in European efforts to reconstruct those nation states that European elites worked so hard to create in the three centuries before this one. Funny.
The reasons are set forth in question and answer format:
1. Es reconeix Catalunya com a nació? Si. (Is Catalonia recognized as a nation? Yes). The materials go on to explain that the Autonomy statute would constitute a legally binding obligation of the Spanish State that recognize that sovereignty eminates form the Catalan people who have reserved for themselves the right to determine their own future. More importantly, it relies, for this answer, on language in the preamble of the new Autonomy Stature to support the independence argument. The Preamble is said to recognize the sovereign authority of the Catalan people as expressed through their parliament. The Preamble of the Autonomy Staturte is said to have constitutional effect (“valor juridic") and will serve as the basis on which the text will be interpreted. This is an interesting concept, accepted, for example in French constitutional jurisprudence, and not rejected in the jurisprudence of the European Court of Justice. For a discussion of concept of Preambles with constitutional value or effect, see Larry Catá Backer, Restraining Power from Below: The European Constitution’s Text and the Effectiveness of Protection of Member State Power Within the EU Framework, The Federal Trust for Education and Research Online Paper No. 15/04 (July, 2004).
2. Es reconeix la igualtat del Català I el Castellà? Si. (Is there recognition of language equality between Catalan and Castilian? Yes). The Autonomy Statute will guarantee the equality of Catalan and Castilian languages. Article 5 of the Autonomy Statute is said to recognize the historic rights of the Catalan people and article 6 is said to guarantee the public use of Catalan. The Autonomy Statute will eliminate language disabilities imposed on the Catalan language since the end of the unsuccessful Catalan rebellion against the Spanish Crown during the course of the War of the Spanish Succession in 1714. The Autonomy Statute guarantees, we are told, equal treatment for both language and prohibits discrimination on the basis of language use. This provision is said to bring greater equality among the linguistic groups in Spain, and advance that recently popularized EU ideological campaign--unity in diversity. But language, and language rights, can be a very useful device for separation as well as for unity in diversity. Combined with the provision suggestiung that sovereignty flows from th Catalan (rather than the Spanish) people, one might think that the purpose of the language provision is to augment the separation between Catalan and Spaniard. The language provision thus, can be seen as furthering the Belgian solution to linguistic division. And that implies a slow march to the solidification of first linguistic, then ethnc, then social and then public separation-- if that is what the elites choose. And of course, the linguistic provisions are also meant to further the public international recognition of the separate sovereign authority of Catalonia, first within Spain, then within the E.U., and then the rest of the international community. The language provision, thus, imports a potential bomb, whose long term consequences are ambiguous at best.
3. Més drets per la ciutadania? Si. (Will there be more rights for citizens? Yes). The new Autonomy Statute is said to guarantee greater social, cultural, and environmental rights to the Catalan people. The Autonomy Statute increases the power of local government to attain these ends with greater attentiojn to the peculiar needs of the people of this area. In particular, the Statute will make it harder, we are told, for the forces of reaction—including the Catholic Church and the conservative parties of Spain—to diminish the social, cultural and environmental rights of citizens. An example given is the preservation, against these forces, of a right to death with dignity.
4. Un estatut que parla de la gent? Si (A Statute that focuses on individual rights? Yes). The Autonomy Statute is said to follow the modern trend in constitution making by focusing on individual and human rights for all sectors of the population. The Autonomy Statute is said to impose on government an obligation to reduce poverty and subordination, unlike the current Autonomy Statute that merely seeks to organize government. This argument is particularly interesting in the way it juxtaposes first generation constitutions, like that of the United States—constitutions that focus on the formal organization of government—with modern constitutions—like that of postwar Germany–that begin to focus much more on the relationship of the state to the individual.
5. Drets per als treballadors I les treballadores? Si (Rights to male and female workers? Yes). The Catalan state would receive greater power to regulate labor rights. Catalonia would have greater power over labor and union rights and power. It is for this reason, it is said, that Catalan unions support the new Autonomy Statute.
6. Més I millors competencies? Si (More and better competencies? Si). The Autonomy Statute increases the formal competences and powers of local government by devolving greater power from Madrid. It makes it more difficult for the central government to “interfere” in the affairs of Catalonia. The focus of this argument is on the provision of services: greater local state power will make the trains run more efficiently and serve to better protect the shore against development (by other Catalans, among others, with greater influence in Madrid perhaps!). But also poionts to greater control of immigration—but this power would be limited to the immigration of non-E.U. nationals because no amount of devolution will reduce the power of the greatest sovereign, the European Union, from controlling the rights of E.U. citizens to free movement within the E.U., including Catalonia. In addition, the new Autonomy Statute is said to improve the current government, even when the powers of the Catalan state are not expanded, by drawing them more precisely.
7. Un territori I una administrició adaptats a la nostra realitat? Si (A territory and an administration adapted to our reality? Yes). The Autonomy Statute would further recognize the municipal governments of Catalonia as institutions of the state. This would extend the authority of the Catalan government in a way that was unclear from the 1979 Autonomy Statute.
8. Un poder judicial a català? Si (A Judicial power for Catalonia? Yes). The Autonomy Statute would increase the efficiency of the judicial system in Catalonia and would ensure that Catalan rights would more likely find a judicial protection in more locally centered courts. This argument focuses on the importance of the control and naturalization of the judicial machinery for the advancement of local autonomy and ultimately of independence. The argument acknowledges the importance of the courts in the protection and vindication of political rights.
9. Catalunya prendrà decisions conjuntment amb l’estat? Si (Catalonia would participate in national decision-making? Yes). The Autonomy Statute would, on the one hand, create a stronger federal structure for Spain, under which Catalonia would more formally participate in important national decisions. On the other hand, the Autonomy Statute would appear to permit the Catalan state an international presence in organizations like UNESCO and the European Union. This would extend significantly the construction of Catalonia as a subject of international law.
10. Més recursos I més autonomia financera? Si (More flexibility and fiscal autonomy? Yes). The Autonomy Statute would provide greater fiscal autonomy for Catalonia. Unlike traditional federal sattes like the Ujnuited States, where the lasrt century has seen the substantially complete erosion of state fiscal autonomy in the face of federal taxing and spending power, the Catalan Autonomy Statute appears to provide Catalonia would a substantial and uncontrolled power of its purse, to the detriment of the rest of the nation (though, of course, from this Catalan perspective, the nation ends at the borders of Catalonia). This fiscal autonomy is purchased through greater taxing and tax retention provisions.
So, what are the Left parties emphasizing in their campaign in support of the Autonomy Statute? Some points of focus should come as no surprise: general human rights, labor and worker rights, language rights and fiscal rights. Is there anything surprising? What should be most interesting is buried in the document--the focus on the judicial power to expand the rights to be set out in the Autonomy Statute and the expectation of the ability to use particularly expansive judicial interpretation techniques to expand the possibilities for independence inherent in the document. Specifically, the reliance on ideas touching on the constitutional value of preambles is worth some focus. Certainly the French have developed this form of constitutional jurisprudence, as has to a lesser extent, the European Court of Justice. Ironically, there is little sense that a court, interpreting this preamble, would use it to stymie the thrust toward indepdence (or at least toward a greater autonomy). It is possible for a court to emphasize the connection with the Spanish Kingdom as well as the idea of sovereign power vested in the Catalan people, in interpreting the document. And ultimately, the Autonomy Statute remains subordinate, in constitutional terms, to both the constitution of the Spanish Kingdom and the Treaty obligations of Spain under the various European Union Treaties.
Much of this remains highly contested. My friend and colleague Jaume Saura Estapà, the President of the Human Rights Institure of Catalonia and a Profesor titular de Derecho Internacional Público of the Law Faculty of the University of Barcelona, suggests that the independence minded Left remains skeptical of the new Autonomy Statute precisely because it doesn’t go far enough to establish a firm basis for independence. He notes that: “No creo que el Estatut sea un paso hacia la independencia (y por eso ERC vota en contra). Se buscan las máximas cuotas de autogobierno, sí, pero en el marco de la Constitución española. El independentismo tiene un apoyo significativo, pero minoritario, en Cataluña: no creo que llegue al 20%. Y ninguna de las fuerzas que apoyan el Estatut son independentistas.”
Also interesting is the way the document speaks with a forked tongue. On the one hand, it focuses arguments on the creation of a federal union within Spain, and on the other hand it appeals most strongly to the independence aspirations of at least some large portion of the Catalan Left. Ultimately, the parties won't be able to have it both ways. And my sense is that that they realize this. Much like the elites who crafted the now failed European constitution (see my earlier post), the Catalan Left is attempting a subterfuge of sorts--suggesting the innocuousness of the current Autonomy project, all the while pointing to the ultimate aim, to undo autonomy entirely in favor of independence. For this longer-term project, the ordinary population must be prepared, and brought to the idea slowly. Thus far, it has not worked in the project of political consolidation--to create single demos with a political constitution for E.U Europeans. See Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 Year Book of European Law 13 (2002).
Perhaps it will work better for the project of devolution--to create a number of small ethnic states in place of the consolidated nation-states that were the great nationalist projects of the 19th and 20th centuries. There would be great irony here--language nationalism was a significant tool of the great state building projects of the 19th century, especially in central Europe and Italy. The wholesale reconstruction of nearly lost languages, and the fabrication of a rich literature and history tied to these resurrected languages went a long way to the creation of states (all with significant linguistic and ethnic minorities). That same ethno linguistic political project, ironically enough, is working in the opposite direction in Europe. Independence within the framework fo the European Union will produce nothing more than a more direct relationship with the ultimate federal sovereign--but real little independence in the 19th century sense. In this context perhaps it will meet with the same success--and limitations.
Professor Saura is more hopeful on the language issue. He notes that: “En el apartado de la lengua, no creo que el modelo al que vayamos sea el de segregación. Al revés. Lo que hace el Estatut es convertir al catalán en obligatorio para todos. Hasta ahora era lengua oficial en Cataluña, como el castellano, pero sólo había obligación de conocer el castellano (porque lo dice la Constitución española). Ahora ´hay que conocer ambos idiomas. En Bélgica (o Euskadi) hay segregación lingüística precisamente porque las comunidades se refugian en su idioma y rechazan el otro. En Euskadi, claro, todo el mundo conoce el español y sólo el 30% habla euskera. En Cataluña, se quiere que todos, el 100% de la población, entienda y hable los dos idiomas oficiales. El único problema con esta disposición, naturalmente, es la población flotante, la que está de paso, a la que obviamente no se le puede exigir que sepa catalán.”
The E.U. of course, is the great new factor in the pattern of devolution and consolidation. Perhaps devolution--even Catalan devolution--will be much more likely now because it is much less relevant to the diffusion of power in Europe, which appears to be rising up to Brussels in fact even as it appears to be devolving to Barcelona, in theory.