Spain 155

Originally published in Spanish: “España 155”. Manuel Arias Maldonado. The Objective.

We have had some time to reflect on the unprecedented measure adopted by the Spanish government to invoke Article 155 of the constitution —after all, there is always a first time in life. But, whatever comes out from the Catalan Parliament, its enforcement will be hardly stopped at this point, despite the dissuasive character implicit in the elucidation of measures proposed along with it. What follows is some notes on this regard.

1. There has been some discussion over whether its application was justified or not, since the interpretation is that the declaration of independence never occurred —the last missive of the Catalan president would confirm that. However, the supposition of fact is unquestionable: both the violation of constitution that took place in the Catalan Parliament the 6th and 7th of September, and the damage to the general interest of Spain (and therefore of Catalonia) can be considered as proven. If there was no declaration of independence (even though it is hard to “suspend” what never was declared), at least there has been a repeated threat to declare it, to which we should add a state of social exception marked by social mobilization and economic decline, with the subsequent damage to the rights and interests of Catalan citizens.

2. Of course, we have already heard many things: that the enforcement of the 155 is “a failure of Spain”; that the Article in question is purely ornamental; and even that it is an unconstitutional article. But the understandable uneasiness that we all may feel for its enforcement should not lead us to the incongruence (an unconstitutional article included in the constitution), the well-meant wishes with no further specification of plausible alternatives (“it could had been avoided”) or the collectivisation of responsibilities (everybody’s failure). We have come to this because a regional government has rebelled against the state, and after having enjoyed of multiple chances, it did not pull back. It would have been desirable that the Catalan government would not had recovered the long-standing Spanish tradition of mutiny, but this is exactly what has happened. Everything else is just beating around the bush.

3. The idea that the proposed measures make up a “hard” 155 also belongs to the good whishes land, since nowhere is specified which form would adopt a “soft” 155. Or is it that self-government can be taken over  to return it to the legal order while keeping in office those who have violated it so grave? Again: that a measure displeases us or overwhelms us does not mean that such measure is unjustified. Nor demand more clarity to Article 155 makes much more sense, since its formulation must be open —only that way the government in charge could response to a supposition of fact susceptible of adopting very different forms. In this case, the settlement between constitutionalist parties is purported to deal with something very serious: the seizure of Catalan institutions by the pro-independence movement and the use of all public resources available to promote a goal —secession— that does not fit in the constitutional order. It is glaringly obvious that such end has been relentlessly encouraged through an exercise of collective persuasion based on the spreading of lies after lies. However, we can formulate the problem in a different way: How else, then, could the state government, in Spain or Germany, deactivate the action of a regional power in rebellion?

4. In a sense strictly political, the Spanish government’s response matches the definition of sovereign suggested by Carl Schmitt: sovereign is who decides on the exception. In other words: who exercises the effective power when lawlessness is rife. In our case, the state has just to assert its power because a different power —the Catalan regional government’s power— was asserting itself as sovereign since early September. But here the state power is legitimate, because its actions are protected by the constitution and laws, and these include a set of guarantees inherent to the rule of law, as the appealability before the Constitutional Court and the right to address the Low Chamber for the representatives of the self-government affected. So, yes, Schmitt, but less.

5. Likewise, there has been some questions on whether the Spanish government can remove the Catalan president. But Article 155 would hardly meet its purpose if the problem that causes its enforcement is precisely the behaviour of a regional president. This is why the constitutional text refers to “adopting the necessary measures”. That is, it would make no sense to take over the regional government while keeping the main responsible of its constitutional deviation. However, it is argued that he has been democratically elected. This is not entirely true in Mr Puigdemont’s case, but even he were it, the argument lies on a somewhat primitive conception —or pretty non-liberal— of democracy: Should any leader elected by citizens, whatever he does with the votes received from them, be kept in office? This was not even accepted by the natural law of the Middle Ages, which unofficially granted the citizens the right to rebel wherever the Prince became a tyrant. Vox populi, vox dei? Faced with the rise of populism, we always return to the same question. And the same answer: of course not. The unsparing teacher that is History has taught in a thousand ways that popular decision must not be sacralised. Hence the cautions to counter majorities that characterize liberal democracies: from separation of powers to the rule of law. For no democratic mandate can justify a behaviour aimed to seriously violate the constitutional order. However much people take to the streets to shout the opposite.

6. Even so, one thing is the question about the opportuness of Article 155 and quite another is the question about its effectiveness. Will this serve to fix the explosive situation we are handling? I think this is a different debate unfit for categorical conclusions —nobody knows. Of course, this Article was intended for situations exactly like this; the arise of the occasion has indeed proved its necessity. In truth, only one alternative was possible: to keep waiting until the situation got rotting levels. But neither the Spanish society nor the Catalan could keep indefinitely watching the behaviour of a regional government that has pursued —explicitly and openly— an unconstitutional, illegal and illegitimate goal. We must remind it: this is a non existent right, for which promotion the Catalan self-government institutions and a significant part of its public budgets have been used. There are some risks, of course, ranging from public disorder to the results of upcoming regional election. But those risk come from the very nature of the secessionist phenomenon, and the state government, along with the parties that are loyally supporting it, has no option but to address them. Supported by the citizens, if possible, because we are concerned citizens and not mere external watchers.

These are vertiginous days, because vertigo is what it feels to look into the abyss. For some, the enforcement of Article 155 means actually to jump into the abyss. Maybe. But maybe some day it will be seen as the step back that prevented the fall —everybody’s fall. Soon, like it or not, our doubts will be settled.