See part I of the series here.

We saw in the previous piece how the 2003 Catalan elections and the 2004 Spanish general elections ultimately led to the approval of a controversial statute by referendum.

What followed was an appeal by the conservative party to the Spanish Constitutional Court. The Court ended up amending many of the most controversial provisions of the statute. Historically, the Constitutional Court has been a respected actor in Spanish politics. Its judges are appointed periodically by consensus from the best of Spanish legal academia and legal circuit, and its rulings used as a source of legal doctrine. However, the ruling over the 2006 statute is widely seen in Catalonia as lacking legitimacy. Why is it so?

The climate in Spanish politics during the first Zapatero government was particularly acrid. The conservative People’s Party (as well as many of the media outlets that were closely aligned with it) saw the Socialist government as lacking legitimacy. The main reason is that the mobilization that followed the March 11 Madrid bombings is believed to have changed the result in favor of the socialist party –the PP had been leading in the polls for most of the campaign. The Zapatero government’s legitimacy was then questioned in an unprecedented fashion, and Spanish political debate became increasingly polarized –the so-called crispación. In particular, the ongoing negotiations with the terrorist band ETA –which ultimately led to its end– was portrayed as a betrayal of the victims; legislation legalizing gay marriage and adoption or changing abortion laws were in turn portrayed as going against the religious convictions of a large majority or Spaniards, and so on. Territorial tensions were just another arena of confrontation, one that was particularly sensitive due to the division of opinions within the socialist electorate. The climate ultimately led to the emergence of a new center-liberal party (UPyD, and  its successor now, C’s), whose main issue was the opposition to peripheral nationalism.

As part of this polarization strategy, the conservatives not only appealed to the Constitutional Court –as was expected–, but also started a strategy of obstruction. First, it recused judge Pérez Tremps, who had been in charge of a report on the statute before he was appointed. Moreover, breaking with a tacit tradition of cooperation, the People’s Party vetoed most appointments to the Constitutional Court, so that when the Court had to decide, the term of three of its members had expired and a fourth had died and not been replaced.

The ruling issued after four years of deliberation trimmed some of the most problematic terms like those relating to the judiciary -which is set to be in the constitution as a unitary system, while the statute organized it in a federal fashion-, removed some of the provisions on taxation, and emphasized that references to status of Catalonia as a nation had no legal effect.

Whether or not the strategy of the People’s Party played a role shaping the decision is however far from clear. For one thing, in spite of those advocating a “flexible interpretation of the constitution,” the provisions of the Constitution on which the ruling was based were arguably clear on these matters. Moreover, the vote of the ruling was a 6 to 4, with many members of the majority being PSOE appointees. This suggests that a different composition of the Court, resulting from normal renewal, may not have been very different.

What followed was a harsh legitimacy clash. The socialist-led government of the time (presided by José Montilla) led a street demonstration. The broad consensus in Catalonia is at the moment that the ruling over the Estatut was driven only by politics and a court lacking any legitimacy. In the narrative that is currently fueling Catalonian secessionism this event is seen as the final evidence that more self-government cannot be achieved within the Spanish state and the only way forward is the road of secession. This piece in FA by Princeton professor and outspoken supporter of independence Carles Boix is a good example of a widely held view:

What Catalans saw as a carefully balanced proposal was heavily amended by the Spanish legislature and then ungraciously struck down by Spain’s politicized constitutional court.

For the first time in the democratic period, there have been a significant number of commentators and scholars who see this event as evidencing a clear conflict in Spanish democracy between the democratic and the majority principles and that have argued that a fundamental factor driving the decisions of the Constitutional Court are political preferences. It follows that the role and perception of the Court should change.

While this interpretation is realistic in practice, I would like to argue here that it does not apply to the case of the Statute and that a different interpretation is more plausible. But first, let me reconstruct the argument.

According to this thesis, allowing a court to amend the outcome of democratic decisions in the name of some fundamental principle interpreted with substantial flexibility is an obstacle to the principle of majority. I believe there are several problems with this idea.

The first one is to ignore that projects such as the Statute of Catalonia are not the result of a Condorcet vote. The number of reform proposals that would have won in a similar process are likely to be larger, and one of the roles of a constitution is to set limits on these. In particular, something that is apparent from the process as I described it above is that it was the result of a pact between one faction of the majority party, which wanted to remain in power, with the Catalonian nationalists.

These pacts are a basic element of democratic politics and there is no reason to see them as undermining democracy. However, the same is true to the effect of the Constitutional Court’s decision.

Keith Whittington’s “Interpose your friendly hand” piece argues precisely this, but for a different context. Judicial activism is typically seen as a way for politicians to commit themselves to certain policies or, alternatively, to exert controls against future governments. This however does not account for many of the cases documented by Whittington in which friendly courts play an activist role. His thesis is that judicial review can work as a mechanism to overcome obstructions –he focuses and documents those created by federalism, entrenched interests and fragmented coalitions.

This interpretation is compatible with what happened with the Estatut and, in particular, with the fact that the socialist government approved a proposal that was widely seen as going beyond the limits of the Constitution, and a Court with a progressive majority substantially amended it. As long as the government needed the support of the nationalists in the national parliament, they could not be seen as rejecting a proposal that had obviously gone too far. The amendment that took place in the Spanish government can be seen as a form of position-taking in front of its voters, while expecting that the final outcome would be a substantial re-draft by the Court of the most controversial provisions.

A key implication is that believing that the absence of constitutional review would have produced a substantially, more democratic, outcome, is probably misled. If we forget that the socialist government may have been given more weight to remain in office against preserving the interest of its non-Catalan constituency than its voters, one could expect that the document that was approved by the Spanish parliament anticipated judicial review, that is, it used judicial review, as Whittington suggests, to overcome the obstacle of a fragmented coalition. It is also likely that the factions of the PSOE that supported this proposal did so only because they expected this result. This strategy allowed the PSOE to maintain its support in Catalonia (with José Montilla leading the demonstration against the ruling), while also keeping its non-Catalan constituency happy in that judicial review would remain a national matter, taxation would still be based on territorial solidarity and so on. Once the ruling was out, Zapatero could pay lip service to the importance of respecting the Catalan people while many socialists in the rest of Spain celebrated.

Whether this reading of the events is plausible is subject to debate, of course. Two key and unverifiable premises are that the ruling would not have changed substantially had the People’s Party not played its obstructionist part and that the socialist party, or at least a substantial part of it, had a hidden preference for an amended version of the project that came out of the Parliament.

But subject to those caveats, this is another instance of how democratic “general will” can hardly be understood as a Rousseaunian metaphysical entity floating around. Not only is it problematic to think about theoretically, it is, above all, impossible to identify it independently of an institutional context, which poses an almost insurmountable challenge to democratic implementation.