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To solve Catalonia, Spain needs a new constitution

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The only reasonable way out of Spain’s current crisis over Catalonia is a new constitution. Recognizing both the right to self-determination and the principle of territorial integrity would lay the foundation for peaceful coexistence between Catalan separatists and Spanish unionists, reported Politico (Germany).

The 1978 Spanish constitution resulted from an agreement between very diverse ideological and territorial interests. After the death of General Francisco Franco, the Spanish nationalist right was exhausted and unable to sustain an authoritarian regime that had isolated Spain from Europe and was rejected by the large majority of the population.

Dissidents from liberal, social democratic and communist factions recognized that they couldn’t pursue their political agendas without first setting up democratic rules and institutions that allowed for the expression of political and social plurality, as was already the case in neighboring European countries. For Catalans and Basques, this also meant creating a framework for a progressive recovery of self-rule.

The constitution approved in 1978 reflects the compromises made by each of these parties. It was an ambiguous and rhetorical text, but it was also sufficiently balanced to provide some degree of institutional stability for almost 40 years.

The economic crisis, the emergence of widespread corruption scandals and the conflict with Catalonia have finally shed light on its severe dysfunctions. It’s now become painfully apparent that Spain needs a new constituent process in order to establish more transparent, democratic and efficient institutions.

Madrid’s suspension of Catalan political autonomy and the imprisonment of the regional government is clearly a breach of the 1978 constitutional agreement. The fact that these steps were taken in coordination with the country’s high courts is a definite sign of Spain’s lack of essential separation of legislative, executive and judicial powers.

In recent years, Catalan separatism has grown considerably in reaction to encroaching state centralism. But the ceiling of pro-independence support seems to have stabilized at 50 percent of votes — enough to proclaim an independent state, but insufficient to legitimize or make it viable, especially considering the hostility of a significant minority of Catalans and a large majority of Spaniards.

On the other hand, Spanish nationalism — disguised as constitutional patriotism — is increasingly vocal in its push to turn Spain into a unitary state resembling France. But history shows that a centralized Spain can only be sustained under an authoritarian regime that would place the country outside the democratic norms of the European Union.

Given the current demographic and political conditions, neither the Catalan Republic dreamed up by the independence movement nor the homogenous Spain envisioned by the unionists can take place without recourse to forms of violence that most people on both sides squarely reject.

What is to be done, then? If neither side can impose its project on the other, both will be forced to make concessions to reach an agreement, as they did in 1978.

This must begin with the recognition that Catalans, like any other people, enjoy a right to self-determination. International law already recognizes such a right. But it is essential for reconciliation that it is explicitly incorporated into the Spanish constitution so that the vast majority of Catalans can feel integrated and recognized as consensual subjects by Spain.

This would not automatically give Catalonia the right to secede or create its own state. A new constitutional agreement must also offer guarantees to all those Catalans and Spaniards who legitimately aspire to preserve the territorial integrity of the current state.

The recognition of the right to self-determination should be accompanied by a law of clarity — along the lines of the 2000 Clarity Act of Canada — that makes it difficult in practice to secede. It could demand, for example, that an independence referendum must obtain two-thirds of the votes or a majority of the census before the territory in question can effectively become independent.

In this way, the right to self-determination and the principle of territorial integrity, the two basic pillars of the right of secession, would be guaranteed.

This simple reform would be an incentive to develop common institutions that can provide stability to the new constitutional system. These institutions should clearly define central and territorial powers, set up impartial and transparent arbitration bodies, and establish a fair system of interregional solidarity. They should also provide some level of symbolic and international recognition to different national identities.

A federal or confederal framework is crucial for internal self-determination to be viable and effective in Spain. But it is practically impossible for this type of reform to be carried out without first accepting a restricted right and a constitutional path to independence.

That would force Spain’s central institutions and demographic majorities to respect and seek stable agreements with devolved authorities like the Catalan government. Equally, making it difficult to access independence without a broad consensus of the territory’s population would force those authorities to seek stable agreements with central institutions, discouraging them from pursuing unilateral solutions.

To avoid further escalation of the current conflict, Spain urgently needs to engage in a new constituent process. Next year, instead of celebrating the 40th anniversary of the Spanish constitution, we’d all be better off trying to revive its spirit.

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