If today Spain's parliament were to reject the Catalan parliament's request to be granted the authority to organise a consultation on November 9, it would be doing so purely out of lack of political willingness. The consultation, both on the grounds of its intent (to find out the Catalan people's opinion about the future political status of their country) as well as the attitude of our institutions (willing to negotiate with Spain the mandate arising from the result), is perfectly legal. This legality, backed by prominent Catalan and Spanish jurists and argued by both the Institut d'Estudis Autonòmics (1*) and the Consell Assessor per a la Transició Nacional (2**), was confirmed by the Constitutional Court (CC) in its ruling of March 25 on the declaration of sovereignty passed by the Catalan parliament almost a year ago.
It is true that the CC found the proclamation of the Catalan people as a sovereign political and legal subject, as stated in the declaration, to be entirely "unconstitutional and null". However, the ruling went on to draw a distinction between the affirmation of sovereignty and the items in the declaration which were specific to the process of the right to decide. The CC refuses to accept such a right if it is bound to unilateral self-determination. However, it does accept it, provided it is carried out "by means of a process within the boundaries of constitutional law, with respect for the principles of democratic legitimacy, pluralism and legality" (part II, item 3b).
The CC insists that the Constitution is grounded on the principle of democratic legitimacy, understood as "the closest possible affinity between the people and government" and the acceptance that "the minority may put forward proposals of its own and voice its views on the proposals of the majority" (part II, item 4a). It then reiterates that no constitutional principles are untouchable and it states that preparations made within the framework of the right to decide are acceptable, so long as they do not undermine democratic principles or violate basic rights. This means protecting (affording constitutional validity to) both the civil society activities and the declarations and actions of the Catalan public institutions aimed at making the right to decide possible, including the Consell Assessor itself and the activities of the President and members of government. In this sense, such a lenient stance on the right to decide contrasts with (and breaks away from) the CC's own ruling of 2008 on the so-called Ibarretxe Plan (3***). Back then, the CC ruled out any possibility of a Basque consultation, among other reasons, because "it affects fundamental issues resolved within the constituent process (...) that are not for the constituted powers to decide upon". In order to incorporate a potential right to decide, the CC demanded first a constitutional reform (through article 168). However, now it appears to admit that the right to decide may actually precede such a reform.
Spain's Attorney General (and the ucompromising Spanish government he represented) pushed for the entire declaration of sovereignty by the Catalan parliament to be scrapped. Therefore, when the CC's ruling came, it breathed new life into the process whilst actually helping the state to save itself from the absurd consequences derived from its flat-out refusal to do anything. In other words, prior to the ruling of March 25 and with PP's position as the only reference, the law on consultations that Catalan lawmakers are drafting would have been stillborn. However, now there is some chance (a significant chance, actually, if the magistrates of the CC are consistent) that the CC may decide to accept the consultations law. This law would, to quote from the ruling once more, allow "the minority ... to make proposals and to voice its views on the proposals of the majority".
At any rate, the crack opened by the CC is a hairline one. Firstly, because the Court calls upon the institutions to enter into a dialogue with each other. Nevertheless, it does so in terms that are far less emphatic than those used by the Canadian Supreme Court in its opinion on Quebec (which Spain's CC mentions explicitly). Secondly, because it emphasises that the decision process, regardless of the objectives set, must "inexcusably" abide by the constitutional reform procedures. Namely, a majority of two thirds in the Spanish parliament followed by a general election and another 2/3 majority vote in the newly-elected parliament and, finally, a referendum. And given that the PP and the PSOE have effectively got full veto powers, we are faced with an obvious political dilemma: can we accept this little poisoned gift from the CC?
My position is that, for now, the consultation is a priority for Catalonia, even though it will not be the end of the road if, for some reason, it cannot be held. It will allow both sides to size each other up and will help to overcome the internal split still present within some Catalan political parties. It will give visibility to Catalonia's will to be free. And it will help Spain to become a true democracy by ridding it of the flaws of a chaperoned Transition1. More importantly, it is hard to believe that, once the consultation has been held and won, the current knot would not be undone more easily than the constitutional procedures would lead us to believe.
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(1*) Institut d'Estudis Autonòmics: an advisory body which, among other jobs, advises the Catalan government and lawmakers on whether proposed new legislation complies with Spain's constitution and the Catalan statute of autonomy.
(2**) Consell Assessor per a la Transició Nacional: a relatively new committee of experts who advise the Catalan government on matters to do with the ongoing political process in Catalonia.
(3***) In 2008 Basque President Ibarretxe pushed for greater devolved powers from Spain's central government and tried to hold a referendum on the matter, but the CC ruled that his plan was altogether unconstitutional.
