“Secession from Spain will probably require a break-up action by declaring independence in the parliament with a wide democratic support.”
One of the symptoms that reflect our politicians, scholars and intellectuals do not see with such good eyes the idea of secession, is precisely the lack of a debate in regards to which procedures we should put in place to become a free estate democratically. Not only after the massive demonstration in Barcelona last September 11th, have Catalans not yet seen a clear and consistent road-map to independence, with a proper comparative analysis that contributes to reinforce the legitimacy of our ambition.
I beg the reader to forgive me for the vanity of my complain, but I was one of the first authors to try to respond to the various uncertainties that are now appearing in regards to Catalonia’s independence, also from the legal perspective. I did talk about this topic extensively in my book Independence and reality (La independència i la realitat– Moll, Ciutat de Mallorca, 2004), as well as it was mentioned in my essay New states and the democratic principle (Nous estats i principi democratic– Angle CETC, Barcelona 2009), which has a more technical approach. Both of my contributions have been despised by academic scholars; however, if instead my texts would have been discussed, I believe they would have saved themselves the professional failure of investing decades into political science and public law, but still not having an opinion about the remarkable change of constitutional structure that our nation will be undertaking soon.
I will then try to summarize these bibliographic precedents mentioned above, only a small summary of the measures and procedures necessary to legitimate Catalonia’s Independence according to the current legislation.
First to mention is the procedure commented by the vice-president of the Spanish government, Mrs. Soraya Saénz de Santamaría: the Spanish constitution of 1978. Catalonia could only be independent under the Spanish constitutional regime, that is, with the correspondent reformation of the Spanish constitution. This one would require the support of a wide majority of the Spanish parliament and the senate (that is, two thirds of each chamber). Then elections should be celebrated, in order to guarantee the reform project is executed by the parliament and the senate, all new elected. And, finally, a referendum. So, in this situation, Catalonia could become independent only if the Spanish people and their government would allow so. This is the interpretation declared by the constitutional court of Spain in regards to the Basque country and the plebiscites organized by Ibarretxe, with a sentence dated September 11th 2008.
Under the frame of this constitutional system it would be almost impossible for Catalan people to express and execute the claim for self-determination. Thus, both the people and the politicians of Catalonia are aware that a new Catalan state can only be created after a constitutional break-up with Spain. Yet, most of the countries that have become independent have done so: they did not follow the constitutional rules of those states they wanted to separate from, in order to become sovereign entities (i.e. USA, which in the XVIII century broke up all the bonds with Great Britain, precisely the constitutional proto-state of those times).
The key to legitimate a constitutional break-up in a democratic context of the current panorama, and notwithstanding the current international legislation, involve two determinant actions: one to have a majority support from the political forces or from the Catalan population in an official referendum; the second, to meticulously respect the fundamental rights of the entire collective. However, since the Catalan government is not allowed at this moment to legally call for such a referendum, it is highly probable that it will require a declaration from the Catalan parliament to break-up with the Spanish government. Once we are out of the Spanish constitution we can create a new legal entity in which a referendum for secession can freely take place, of course with the support of the international community.
There would be though an intermediate solution that would consist of making the Spanish government to authorize the referendum in Catalonia. But achieving Catalan independence would still involve a constitutional break-up, even although all the Spanish constitutional principles would have been accomplished, since we already know that the creation of a new sovereign entity requires a constitutional reform.
In conclusion, and despite all independence processes have different milestones to accomplish within a frame of time in regards to those aspects derived from secession (division of actives and passives, building state structures, signature of international agreements, like European Community…) the current constitutional juncture must prove our political parties that a break-up action will be soon required. A legitimate break-up, democratically supported, but still a break-up, not a transition. The Catalan people representatives who will take the challenge to lead this project must be conscious that this must be the first step –not the last one, as some commented- when they find direct opposition from the Spanish state, again rejecting the authorization of a referendum to take place in Catalonia. The more time it takes to materialize a declaration of independence, the more doubtful Catalan people will perceive the actions of our current parliament, or even their will to walk towards freedom.