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Constitution in the eye of the storm of the Catalan crisis as it turns 41

As Spain commemorates the anniversary of its magna carta, it remains a source of conflict between those against and for Catalonia's self-determination


05 December 2019 08:34 PM


Neil Stokes | Barcelona

December 6 is a public holiday everywhere in Spain to commemorate the Spanish constitution, which passed with 91% of the votes in a referendum on that day in 1978.

To celebrate the day that meant the final nail in the coffin of the Franco dictatorship that had ruled Spain for 40 years, a memorial event is held every year in Madrid, and another one in Catalonia.

However, this year the Catalan president, Quim Torra, will not be there, as he turned down his invitations, describing Spain's supreme law as "a tool to justify repression."

Torra, who heads a pro-independence government in Catalonia, was referring to how the Spanish authorities have responded to the Catalan bid to split from Spain in 2017.
Article 155

Spain's Constitutional Court ruled the unilateral referendum in October 2017 illegal, and an article of the constitution was used to suspend Catalonia's self-rule following the bid.

Over two million people voted for independence in the referendum, a reason why Torra refused his invitation, saying the constitution "does not represent the majority of Catalans."   

Forty-one years since the constitution was passed "to establish justice, liberty and security" in Spain, its magna carta is at the heart of the current political crisis.

In one corner, the constitutionalists

The political parties and their supporters who oppose Catalonia's independence and the calls for it to exercise self-determination refer to themselves as "constitutionalists."

  • "The constitution is based on the indissoluble unity of the Spanish Nation"

    Spanish constitution, article 2

Their arguments are based on the founding document's text, which states that "the constitution is based on the indissoluble unity of the Spanish Nation."

The constitution "recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed," but it does not, they claim, allow for secession.

Before the 2017 independence bid, the Spanish government often referred to the constitution to justify its refusal to discuss an agreed and binding referendum.

"What we're seeing in Catalonia is an attempt to eliminate the constitution and the autonomous statute of Catalonia," said then Spanish president, Mariano Rajoy.

Just this week, Socialist leader Pedro Sánchez said any deal with the pro-independence ERC party must "be within the framework of democratic legality and the constitution."

In the other corner, the pro-independence camp

Yet, the pro-independence camp accuse unionists of using the constitution for their political purposes and to deny Catalonia the opportunity to vote on its self-determination.

The example perhaps most often cited is the Rajoy government's invoking, for the first time ever, of article 155 of the constitution to impose direct rule on Catalonia after the 2017 bid.

The article allows the Spanish government to "take all measures necessary," "if a self-governing community does not fulfil the obligations imposed upon it by the constitution."

Constitutional Court's role

Supporters of self-determination also accuse the Spanish authorities of using the Constitutional Court to undermine Catalonia's autonomy and democratic rights.

In the run-up to the 2017 referendum, the court upheld the Spanish government's objections to the Catalan legislation making the vote possible, suspending it and the referendum.

The Constitutional Court later suspended the Catalan legislation that would allow a declaration of independence, and then suspended the declaration itself on October 31. 

It has been argued that the Constitutional Court sparked the recent movement for Catalonia's independence by striking down parts of the 2006 Statute of Autonomy.

The statute granted Catalonia new powers of self-rule, and the ruling caused outrage, leading to the first mass independence protest in Barcelona on September 11, 2012.

Constitutional conflict and reform

Meanwhile, the constitution continues to be a source of conflict between both sides of the political divide, who cite it one way or another to defend their arguments.

For example, unionists say 90% of Catalans voted for it, while their opponents say most of those people are no longer alive, and so it does not represent them or reflect today's issues.

As for reforming the constitution, it has only been amended twice, while other amendment requests made by organizations like Amnesty International have so far gone unanswered.

In fact, changing the constitution is no easy matter, especially those parts that deal with such things as the "indissoluble unity of the Spanish Nation."

Such articles are protected provisions, and to change them would require majority votes in both houses, a new election, another two majorities, followed by a referendum.

Yet, the Spanish government has not ruled out the idea of a reform, if constructive and based on "consensus," according to its delegate in Catalonia, Teresa Cunillera.  

At an event commemorating the constitution's 41st anniversary this week, Cunillera defended its relevance and said, "the Constitution is the homeland of dialogue."

Yet, representatives of the pro-independence parties chose not to attend that event, and with the president staying away from Madrid on Friday, a lot more talking will be needed.


  • Exterior image of the Constitutional Court (Photo by Tània Tàpia)

  • Exterior image of the Constitutional Court (Photo by Tània Tàpia)