Catalonia: Caught between Democracy and Legality

4 mins read

By Carlos Losa Valencia

Many of you would assert that the Catalan conflict is an exclusively Spanish issue. But let us not fool ourselves. The unending political tensions between two opposite poles (the pro-unionist and the pro-independence) both within and outside Catalonia reflect a disturbing trend largely extended to all democracies. Increasingly often, our political class fails to tackle many economic, social and political problems which are gradually turned into legal matters. It is therefore not surprising how the EU and the rest of the international community have constantly taking a firm stance on the Catalan crisis while reiterating their respect for the principle of legality.

But, what is behind this widespread political practice? The answer seems obvious. The troubling political inability to forge a long-term solution or even to put out sound proposals on the table, that help us break the deadlock in the relationship between Catalonia and Spain, has recently uncovered a greater democratic weakness: the excessive judicialization of politics and its consequences.

Thus, what at first was a merely political problem has now become a legal one, the gap left by the political inaction is being filled by the courts. However, far from being something new, the transformation of political issues into legal ones was already identified by Alexis de Tocqueville in his book “Democracy in America” in 1835. This well-known pattern of judicializing a political conflict and hiding behind legal arguments is broadly acknowledged as the common feature in all democratic systems. But we cannot forget that the judicialization of politics leads, in turn, to the inevitable politicization of justice.

Although it is not surprising that the political system attempts to influence the appointment of judges, the separation of powers is at risk of being considered – if it is not already – a utopia. This might be the Spanish case where democratic quality is being eroded or even lost. Hence, the Catalan society is bewildered by the way policy seems to be entirely exercised through the judiciary. The excessive judicialization of politics and the politicization of justice perfectly summarize, in the light of the latest developments, two contrasting political discourses between the pro-unionist and the pro-independence parties in this conflict.

On the one hand, the Catalan government has been upholding the fundamental right to self-determination and territorial sovereignty by considering a referendum as the only valid democratic instrument. Accordingly, and despite the Spanish Constitutional Court voiding it, this argument led the Catalan President Carles Puigdemont to hold the referendum in the beginning of October. Following his political discourse, every democracy is rooted on its people’s right to decide their own future. Democracy should always be above legality and evolves through exercising the right to engage in civil disobedience acts. On the other hand, the Spanish Prime Minister Mariano Rajoy has consistently advocated respect for the law enforcement and the rule of law as a whole. Thus, as guarantors of the constitutional order, judicial decisions must be accepted and abided by. In other words, there cannot be democracy outside the law.

At this point, democracy and legality seems to be two antagonistic concepts in this conflict. Once again, the dichotomy between the judicialization of politics and politicization of justice emerges. The Catalan pro-independence government has continuously delegitimized the Spanish courts’ authority by considering it a tool of political power and therefore, contrary to the people’s will. Thus, despite being suspended by the Constitutional Court, the outcome of the referendum had to be – at least in a symbolic manner – implemented. This, in fact, occurred on October 10th when Carles Puigdemont announced the wish of the Catalan people to become an independent State.

After that, everything changed. In the face of this dire situation, the Spanish government applied the Article 155 of the Constitution by which the Catalan parliament was dissolved while taking control of the region and calling for regional elections on December 21st. In parallel with this political action, the response of the Spanish justice system was overwhelming. The president of the Catalan parliament, members of the government as well as the leaders of civil pro-independence associations were imprisoned  – in preventive detention – facing charges of sedition, rebellion and misuse of public funds. This legal pressure was the trigger for the Puigdemont’s self-imposed exile, together with other members of the Catalan parliament, in Brussels.

Unsurprisingly, the political campaign in Catalonia was marked by an unprecedented context in the country’s recent democratic history. For those who do not follow the Catalan and the Spanish policy, the result of the regional election on December 21st displays the vast complexity of this conflict, sometimes unknown abroad. Firstly, the pro-unionist party Ciutadans (citizens) collected the most votes. However, its 37 seats in the 135 seat Catalan parliament are not enough to secure a sufficient majority in order to govern. Instead, the real winners turned out to be the pro-independence parties that, although they scored less than half of the votes (48%), together have a slim majority in the new Catalan parliament (70 seats).

This leads us to identify the enormous polarization between citizens for and against independence within the Catalan society. It can be assumed that this worrying social divide explains how contrasting political discourses are constantly articulated towards their supporters while dismissing the necessary dialogue between both sides of the Catalan political reality. In order to mitigate the recent escalation of tension, the time of the “high politics” is now. Politicians with an open-mindedness attitude, enough flexibility and realism in search of a solution for Catalonia, regardless of electoral cycles, is desperately needed.

Nonetheless, the Spanish policy has unfortunately failed and it is now when the judicial authority fills its gap. The incarcerations of Catalan politicians and the effective control of the Spanish government over the Attorney General’s office are products of the excessive judicialization of politics, giving as a result the institutional paralysis in which we at present find ourselves.

It becomes clear that a political problem of this scale cannot be exclusively resolved through the judiciary. Both sides should understand that democracy and legality are two mutually interrelated concepts. The policy must address – once and for all – the Catalan conflict in its full complexity.

In the same way that the Spanish government should recognize the existence of a political problem in Catalonia, the independence movement must give up the idea of unilateralism which is contrary to the core principle of democracy. Despite being dominated by the judicialization of politics, the only solution to this challenge is to be found in dialogue.

By Carlos Losa Valencia

Image: Wikimedia Commons

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