Within the known as the “procés”, or the “Catalan question”, on 10th October 2017 the President of the Catalan Government participated in a regular session of the Catalan Parliament in order to give an balance of the political situation in the region.
In his speech Mr. Puigdemont reported the positive results of the alleged referendum of 1st October 2017. However the words he used were full of confusion about whether or not the declaration of independence took place at the Catalan Parliament
In any case, Mr. Puigdemont stated:
“Arrived to this historical moment, as President of the Generalitat, I assume to present the results of the referendum to the Parliament and our citizens: the mandate that Catalonia becomes an independent State in the form of a republic.
That is what I have to do today. For responsibility and respect.
And with the same solemnity, the Government and me too propose the Parliament to suspend the effects of the independence declaration in order to start a dialogue in the following weeks without which is not possible to reach an agreed solution”[i]
These words have created some confusion regarding the existence or not of an implicit declaration of independence since, although such a declaration didn’t properly take place, the Government and the President proposed to the Parliament “to suspend the effects of the declaration of independence”.
Certainly, the independence declaration corresponds to the Parliament of Catalonia, according to art. 4.4. of Law 19/2017, of 6 September, on the referendum of self-determination, law suspended by the Spanish Constitutional Court:
“If in the count of valid votes there are more affirmative than negative votes, the result implies the independence of Catalonia. To this end, the Parliament of Catalonia, within two days following the proclamation of the official results by the Electoral Syndicate, will hold a regular session to carry out the formal declaration of the independence of Catalonia, specify its effects and initiate the constituent process.“
It is important, from the Catalan secessionist legal perspective to comply with the provisions of this article because, although suspended by the Spanish Constitutional Court, it is the one that determines – from the perspective of the alleged legality of the new Republic – the entry into force of Law 20/2017, of 8 September, on Legal Transitoriness and on the Foundation of the Republic, third final provision, also suspended by the Spanish Constitutional Court.
Thus, from the perspective of the alleged legality of the Catalan Republic, this is born – materially – with the positive result of the vote of the Referendum on October 1st (“the result implies the independence of Catalonia”), although “to this end” , within two days of the proclamation of the results, the Parliament must hold a regular session to carry out the formal declaration of independence, specify its effects and initiate the constituent process.
However, although the session of the Catalan Parliament took place on October 10th, there was no formal declaration by the Catalan Parliament, nor the concretization of its effects and the beginning of the constituent process.
In fact, what happened was that Mr Puigdemont reported the positive results of the Referendum and immediately requested to the Parliament to suspend the effects of a declaration which had not yet taken place. Moreover there was not any answer or agreement of the Parliament in this sense.
However, after the Parliament session, the deputies of the secessionist groups proceeded to sign a document in another room containing a declaration of independence[ii]:
“… We, democratic representatives of the people of Catalonia, in the free exercise of the right of self-determination, and in accordance with the mandate received from the citizens of Catalonia,
WE CONSTITUTE the Catalan Republic, as an independent and sovereign State, State of right, democratic and social.
WE MAKE AVAILABLE the entry into force of the Law of Legal Transitoriness and on the Foundation of the Republic.
WE INITIATE the constituent, democratic, citizen-based, transverse, participatory and binding process ”
Now, has there been a declaration of independence? If we understand that from the point of view of the alleged legality of the Catalan Republic the independence started with the positive results of the referendum, they don’t need a declaration for it. However article 4.4 of Law 19/2017, key to interpret this, is clear requiring a formal statement from Parliament that has not been adopted.
This document is a clear commitment to independence, and in itself can be considered as the intended statement whose effects are requested to be suspended.
Moreover, declarations are regulated in the article 166 of the Catalan Parliament Regulation, establishing three types of declarations: declarations of the Parliament of Catalonia (which require the unanimity vote of the Board of Spokespersons), declarations of the Board of Spokespersons (which require a majority vote of the Board of Spokespersons) and Declarations of the Presidency of the Parliament[iii].
It is true that art. 4.4 of Law 19/2017 does not state what kind of declaration should be made. We can think on a statement of the Board of Spokespersons by majority, and a Presidential Statement or a Declaration by Parliament itself. However it would be logical to think, due to its relevance, that the best way is to vote Declaration of the Parliament; therefore a unanimous consent of the Board of Spokesmen would be required. Or in a non legal way -breaking the Catalonian Parliament Regulation- a vote of the Parliament itself.
Therefore, it can be understood that, from the point of view of the alleged legality of the Catalan Republic, there was no declaration of independence, nor suspension of the effects of it. And in this sense what took place from the legal point of view – of that supposed legality – is rather an independence – born ex art. 4.4 of Law 19/2017 with the positive result of the referendum – whose formal statement by the Parliament was omitted or suspended, even though that a declaration was signed in document by some Members of the Parliament, but outside the session and therefore without legal value.
In reaction to this situation, the Government of Spain activated the possible application of art. 155 of the Spanish Constitution (EC) sending a request to the President of the Generalitat of Catalonia, dated on October 11, to clarify the situation and to confirm whether or not the independence of Catalonia has been declared, awaiting an answer tomorrow 16 October; stating that an affirmative or ambiguous answer will imply the application of art. 155 EC, which can be use to intervene and obligate the Autonomous Community to return to the Spanish Constitutional Order[iv].
Although I am not able to anticipate the answer of President Puigdemont, I understand -from my point of view- that there was no declaration of independence of Catalonia, although the process of independence has begun and is actually in suspense, which undoubtedly also affects and breaks the Spanish Constitutional Order.
[i] Compareixença del president Puigdemont davant del ple del Parlament, Barcelona, 10 d’octubre de 2017, Generalitat de Catalunya, Departament de la Presdiència, Oficina del President, Gabinet de Comunicació del President.
[ii]Declaració dels Representants de Catalunya, available at: https://es.scribd.com/document/361241376/Declaracio-Independe-ncia#from_embed
[iii] Reglament del Parlament de Catalunya, available at: https://www.parlament.cat/document/cataleg/165484.pdf
[iv]Requerimiento de 11 de octubre de 2017, accesible en http://www.lamoncloa.gob.es/consejodeministros/Documents/11102017-requerimiento.pdf