The undisputable electoral successes of the nationalist parties that since 2010 are leading the main self-government institutions of Catalonia, and the persistence with which in recent times they have been declaring their intention to secede from Spain –either through negotiation or by a unilateral declaration of independence – have generated an increasing attention not only on the way in which this secession could be carried out, but also on the scenarios which would be opened in the event that this option became a fact. As a result of this, in the last years they have become even more numerous the analysis that – leaving aside the fact that the effective separation of Catalonia from Spain is not only uncertain, but even improbable – have assumed that this will somehow materialize in the near future, and have shifted to foresee how would this hypothetically independent Catalonia look like.
So far, a great majority of the studies published either by the lengthy roster of experts serving the institutions of the Generalitat de Catalunya in order to make apology of the segregation, or by independent analysts and scholars, both favorable and contrary to the process, have been mainly focused on three key issues: the economic consequences of independence for Catalonia, the position that an independent Catalonia would be in relation to the European Union, and the possibility that the citizens of Catalonia could keep their Spanish passports and continue enjoying the rights that come with them, even after segregation. However, the analysis conducted about the political model that could be implemented in a future Catalan State remain conspicuously scarce, so the citizens of Catalonia have been urged already several times to support – at the polls, and in the streets – the independence of their territory, without having the slightest idea of what kind of political regime could be waiting around the corner. What leads us to believe that perhaps some degree of uncertainty over the political system proposed for a hypothetical independent Catalonia constitutes an intentional strategy, aimed at preventing the alienation of any potential follower of this option by advancing political formulas that might raise disagreement, or to avoid the fragmentation of the pro independence political arena, whose extreme diversity makes plausible ideological consensus of limited duration.
All this, despite the fact that as of today there are already several projects or draft Constitution for Catalonia that seek to address and even to settle with detail this major issue. Of these, perhaps the most talked-about has been – perhaps not so much for its content as for their circumstances in which it was presented – the one drafted in early 2015 by the former judge Santiago Vidal. A relatively short document, gestated without official sponsorship of any political force or any institution, but received as a major advance in the process of independence. The problem lays in the fact that Vidal’s draft, the first glimpse of a future Constitution for Catalonia, happens to be an extremely disturbing document, from more than one perspective.
Leaving aside, if only for a moment, the most serious objection that may be brought to it – the fact that Catalonia, being an integral part of the Spanish nation, has no right to secede from it, and therefore is not entitled to have a constitution if its own – the constitutional draft of Vidal and his colleagues suffers from a simplicity on the principles and a poverty on the means which, if circumstances were not the actual ones, would surely generate more hilariousness than outrage among those who do not share the nationalist creed, and more shame than joy among those who support it.
Of all the deficiencies of Vidal’s draft constitution, probably the less serious ones are those derived from its hasty and irresponsible drafting, evidenced by the numerous misspellings of his proposal. I am referring to clauses like section 15, in which shortly after having made an allusion to wearing the Islamic veil establishes without further qualification that "nobody can take his face covered in full", probably without noticing that this wording leaves outside the Constitution, with one singles stroke, carnivals, Holy Week penitents and Halloween costumes; or section 35, in which, when describing the geographical and political boundaries of its new Republic, Vidal forgets that besides limiting “with France to the north, and to south and west with Spain", Catalonia also adjoins the Principality of Andorra; or – to make this list short – section 90, which echoes the desire of Catalonia to "remain part of the European Union and become as rapidly as possible its member state number 29", forgetting that there are currently five candidate countries running for accession, and other several ones expecting to become so, so that in the most optimistic scenario an independent Catalonia could only become – luckily – the thirty something EU member state.
Somehow more serious are the objections derived from a more than precarious hold of the most common categories of Constitutional Law. Any learned reader should be shocked when in section 2.1, the draft constitution states that Catalonia will be a "unicameral parliamentary and not presidential republic" as if "parliamentary" and "presidential" were not antithetical terms on their own right; or when Part II of Chapter II, devoted the executive branch, includes the sections in which the Ombudsman and the Audit Office – popularly eligible the first, and subject to parliamentary designation the other – or even the local governments, are regulated; or the equally nonsensical inclusion of the regulation of Catalonia’s currency (section 89) and the socio-economic system of Catalonia (section 86) in the Chapter devoted to "foreign relations"; or, in short, the very precarious regulation of the "Sala de Garanties Constitucionals", which is entrusted by section 81 with the resolution of constitutional challenges and constitutional rights violations, specifying who will be entitled to bring the latter, but ignoring this major issue but in the case of the former.
Much closer to impudence than to clumsiness are clauses like the one contained in section 12.3, which states that "the Catalans shall remain European citizens with all the rights and duties that they enjoy at the time of formation of the Catalan Republic" rudely overlooking the fact that the Maastricht Treaty clearly states that citizens of the Union are only those who are citizens of their Member States, and an independent Catalonia would not count among those; or in section 22.2, which in a moment in which the echoes of the illegal referendum of November 9, 2014 are not yet off, states that in the future independent Catalonia the call for referendums will be –as in reviled Spain–, an exclusive jurisdiction of Parliament; or, finally, in section 36, which states in no more than six lines all that the future constitution of Catalonia has to say about its model of territorial organization, not even bothering to determine the profile of its future territorial divisions, or to determine their institutions or their respective competences.
However, the most alarming aspects of the Catalan constitutional draft are actually those that reveal the dangerous combination of a candid vision of democracy and a poor understanding of comparative constitutionalism sported by its crafters. A good example of this can be found in sections 39 and 41, in which the electoral system of the future Catalan Republic is concocted. The element of this system that has called the most attention from public opinion – the statement that, in order to avoid abuses of power, the party that wins the elections will never get more than 49% of the seats – constitutes an unjustifiable attack on popular sovereignty: if for whatever reason, citizens decide to vote massively for an specific party, why should they be deprived of seeing an equally large parliamentary majority? In addition, the clause could have potentially perverse effects too: if the winning party could never have more than 49 % of the seats, in a hypothetical context of net bipartisanship, would the party defeated obtain the remaining 51%? But the truth is that the rest of the article is no less preposterous, since it states that the electoral system is proportional, and will operate with "open lists" but at the same time creates 41 constituencies for the allocation of just 105 seats, with the inevitable consequence that more than half of them will be single-member and therefore operate under a majority rule –and without lists whatsoever. Although still more absurd is the arrangement set in section 51, stating the eligibility of the President, "Head of State and supreme authority of Catalonia" by universal suffrage, only to include in section 52 the possibility of termination of his mandate by a motion of censure carried out by the Parliament – a mechanism to which, in change, the Prime Minister is not subject, since his appointment and dismissal, in the most genuine style of nineteenth-century constitutionalism, corresponds exclusively to the head of state without parliamentary intervention. Or, finally, the recall of elected officials contemplated in section 24, when it is known that this formula serves only majorities willing to shake off the representatives of minorities by appealing to a breach of an electoral program which they would not even need to have voted.
It is a commonplace among constitutionalists – at least among those belonging to our culture and our time, notwithstanding the fact that the idea transcended the borders of Europe many decades ago – that constitutions are, firstly, documents with a clear political significance and at the same time, binding legal norms. The former argument implies that their drafting should only come as the consequence of a broad social and political consensus, which ideally should comfortably exceed the purely numerical requirements necessary for the proper formation of a majority. From the latter argument derives the need that constitutions be drafted with extreme thoroughness, since any ambiguity, gap or contradiction could in future times lead to a conflict between institutions, or – even worse – to a reduction in the guarantees for citizens. In view of the results, it is fair to state that all these requirements have been conspicuously absent from the work mode of judge Santiago Vidal, father of the first draft Constitution for Catalonia. The result is a draft constitution technically flawed and politically unacceptable, which obliges to remind that if a good constitution is not likely by itself to solve the problems of a country, a bad constitution, however, is itself enough to bring misfortune to those who try to govern themselves according to their rules. And the one that some irresponsible jurists have put on the table for a future – and still improbable – Catalan state is not just a bad constitution, but a genuine anthology of nonsense.
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Prof. Carlos Flores Juberias, Member of the Board of Trustees