The political future of catalonia: the role of parliament
| Autor | Antoni Bayona Rocamora |
| Cargo | Professor of Administrative Law at Pompeu Fabra University |
| Páginas | 1-23 |
THE POLITICAL FUTURE OF CATALONIA: THE ROLE OF PARLIAMENT*
Antoni Bayona Rocamora**
Abstract
This article analyses the activity of the Catalan Parliament which has to do with Catalonia’s political future. The
analysis begins with the parliamentary resolution of 2013 that declared the sovereignty and right to decide of the people
of Catalonia and goes as far as the latest resolutions on the independence process adopted during the current legislature
by the majority that came out of the elections held on 27 September 2015. All these decision have opened up a legal
debate on basic constitutional principles, in particular those of democracy and legality. The debate revolves around the
following points: how to defend and promote a political project that does not t in with the established constitutional
order? Can the Constitutional Court intervene in non-legal acts of a strictly parliamentary nature? What are the effects
of disobeying the duty to comply with the Constitutional Court’s decisions? The article studies all these questions from
a legal perspective but without neglecting socio-political considerations that are essential for putting them in the proper
context.
Key words: Parliament of Catalonia; right to decide; referendum; democracy; legality; Spanish Constitutional Court;
Catalan sovereignty process.
Resum
Aquest article analitza l’activitat del Parlament relacionada amb el futur polític de Catalunya. L’anàlisi parteix de
la resolució parlamentària de 2013 que declarava la sobirania i el dret a decidir del poble de Catalunya i arriba
ns a les darreres resolucions sobre el procés d’independència adoptades durant la legislatura actual per la majoria
parlamentària sortida de les eleccions del dia 27 de setembre de 2015. Totes aquestes decisions parlamentàries han
obert un important debat jurídic sobre principis constitucionals bàsics, en particular, el de democràcia i el de legalitat,
debat que gira al voltant dels punts següents: com defensar i promoure un projecte polític que no s’ajusta a l’ordre
constitucional establert? Pot el Tribunal Constitucional scalitzar actes no normatius de naturalesa estrictament
parlamentària? Quins són els efectes de desobeir el deure de complir les resolucions del Tribunal Constitucional?
L’article estudia totes aquestes qüestions des de la perspectiva jurídica, sense ometre, però, consideracions d’índole
sociopolítica indispensables per contextualitzar-les adequadament.
Paraules clau: Parlament; dret a decidir; referèndum; democràcia; legalitat; Tribunal Constitucional; procès
sobiranista.
* This article is a translation of the original version in Catalan.
** Antoni Bayona Rocamora, Professor of Administrative Law at Pompeu Fabra University and Chief Counsel for the Parliament of
Catalonia. A specialist in regional and local public law, audiovisual law, transparency and access to public information. Departament
de Dret, edici Roger de Llúria (Campus de la Ciutadella), c. Ramon Trias Fargas, 25-27, 08005 Barcelona, antoni.bayona@upf.edu.
Article received: 08.05.17. Blind review: 17.05.2017 and 17.05.2017. Final version accepted: 24.05.2017.
Recommended citation: Bayona Rocamora, Antoni. “The Political Future of Catalonia: the Role of Parliament”. Revista Catalana
de Dret Públic, Issue 54 (June 2017), p. 1-23, DOI: 10.2436/rcdp.i54.2017.2979.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 2
Summary
1 Introduction
2 Parliament and the right to self-determination: the background
3 Resolution 5/X and the beginning of constitutional conict
4 The will to exercise the right to decide in accordance with the constitutional and statutory framework
5 The right to decide does not cover calling the people of Catalonia to take part in a consultation on their
collective political future: constitutional case law in relation to referendums and popular consultations
6 The call for elections on 27 September 2015 and the unilateral turn of the independence process
7 Resolution 1/XI of the Parliament of Catalonia, of 9 November 2015, on the start of the political process
in Catalonia as a consequence of the election results of 27 of September 2015
8 The Constitutional Court’s position on Resolution 1/XI, of 9 November 2016
9 The parliamentary actions subsequent to Resolution 1/XI
10 Resolution 306/XI: call for a binding referendum on independence
11 To sum up
BIBLIOGRAPHY
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 3
1 Introduction
The Parliament of Catalonia is the political institution that has played the leading role in driving a political
project with the declared aim of turning Catalonia into an independent state.
During the current legislature the will to achieve this goal has been expressed clearly and unequivocally and
created a situation of conict, in particular on a legal level with the Constitutional Court. This conict has
had important consequences for the Catalan Parliament, which has seen how the decisions it has adopted on
this question have repeatedly been declared unconstitutional, null and void.
In this article we will analyse Parliament’s actions from an institutional and legal perspective, which is
complex for two main reasons. Firstly, because of the political consequences implied by a process intended
to achieve a result that is incompatible with the established constitutional order. Secondly, because of the
difculty involved in reconciling the democratic will, in this case represented and expressed by Parliament,
with the demands of the principle of legality, and more specically, constitutional legality. Together with the
principle of democracy, this is part of a pairing that is difcult to separate within the framework of a state that
denes itself precisely as a “democratic State of Law” (Article 1 of the Spanish Constitution - SC)
However, the implications of the political process currently under way in Catalonia do not end here. In
order to understand them fully it is also necessary to consider the nature of the parliamentary acts through
which Parliament’s will has been expressed, because from a legal point of view that is important. Another
important aspect that needs to be considered is the path Parliament has followed, inasmuch as this has not
always followed a clear, straight, coherent line. A proper assessment of the political and legal content of the
most recent parliamentary decisions is only possible with an overall view of how the process has developed
over time, and that needs to go back to Resolution 5/X, which approved the Declaration of Sovereignty and
Right to Decide of the People of Catalonia. Nor should it be forgotten that Parliament has asserted the right
to self-determination in declarations that go back much further.
Nevertheless, it should be noted that this study cannot be framed in purely legal terms. The difculties of
such an approach, given the characteristics of the process itself, have already been pointed out. To properly
understand the way in which it has developed it is also vital to analyse the political context in which the
parliamentary decisions have been adopted and the reasons why Parliament has chosen a specic option
and discarded others. Obviously that does not exclude the possibility of making a legal assessment of
those options and the problems they pose. The assessment here will essentially be from the perspective of
parliamentary proceedings, as another article, which will be published in the same issue of this journal is
devoted specically to the role played by the Constitutional Court in this matter.
The considerations outlined above mean this study is a complex and, to some extent, unusual one, because
they require integrating elements that have a marked political content with legal analysis criteria. As shall be
seen, this cannot always avoid the clash between the expression of Parliament’s political will and the usual
guidelines for interpreting and applying the law.
2 Parliament and the right to self-determination: the background
The current debate on Catalan independence has been explicitly formulated in this legislature, with the result
of the parliamentary elections held on 27 September 2015 providing the legitimate basis for this. This debate
has a direct precedent in the rst statement of intent expressed during the 10th legislature, by means of which
Parliament explicitly recognised, for political and legal purposes, the sovereign character of the people of
Catalonia and demanded the power to decide on its future.1 Obviously, this declaration of sovereignty was
intended to serve as the necessary starting point for exercising the right of self-determination in its broadest
sense.
1 Resolution 5/X, of 23 January 2013, which approved the Declaration of Sovereignty and the Right to Decide of the People of
Catalonia. Published in the BOPC, No. 13, of 24 January 2013.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 4
However, self-determination as a right attributable to the Catalan people was present in declarations adopted
by Parliament in much earlier legislatures and periods, which highlights the fact that the debate on self-
determination is nothing new and has been present throughout the autonomous period.
Resolution 98/III, of 12 December 1989, on the Right to Self-determination of the Catalan People2 solemnly
declared that Catalonia was part of a “differentiated national reality” in the State as a whole. From this it
ows that, for Parliament, respect for the current institutional framework does not imply the Catalan people
renounce the right of self-determination, as laid down in the principles of international bodies and can be
deduced from the preamble of the 1979 Statute of Autonomy.
This self-recognition led Parliament to afrm in the same resolution that, at the right time and by means of
actions envisaged in the constitutional system itself, it would be able to increase the level of self-government
and adapt national rights to the circumstances of each historical period.
Resolution 679/V, of 1 October 1998, on the General Political Orientation of the Executive Council,3 contains
another specic reference to self-determination when it “raties once again” the right of the Catalan people
to freely determine their future. At the time this declaration was accompanied by various demands directed
at the State with regard to reinforcing the principle of bilateralism, granting new powers under SC Article
150(2), funding and the presence of the Catalan Government (Generalitat) in the bodies of the European
Union.
The 8th legislature of the Catalan Parliament approved Resolution 631, of 3 March 2010,4 in which it
ratied the earlier resolutions 98/III and 679/V, along with the will to use all legal instruments in force
and all necessary policies to ensure the Catalan people can exercise their right to decide. This was the rst
parliamentary resolution to use this expression, in the context of the consultations held at the end of 2009
and 2010 in more than 250 municipalities so citizens could express their political will to take part in shaping
the future of Catalonia.
The “right-to-decide” concept was subsequently used in Resolution 742/IX, of 27 December 2012,5 on the
Government’s general political orientation, in a section that gives an initial clue for determining the sense
and scope of the term. Parliament notes in this resolution that for the previous 30 years a very large part of
the Catalan nationalist movement had been fully committed to transforming and accommodating Catalonia
in the Spanish State without renouncing their legitimate national aspirations, desire for self-government and
survival as a nation. But the resolution also notes that the attempts to accommodate Catalonia in the Spanish
State, with the latter’s repeated negative responses, has now reached “dead end”. Consequently, Parliament
believes that “Catalonia has to start a new stage based on the right to decide”.
In this resolution, the right to decide seems to be seen as a right or power the citizens of Catalonia have
to decide Catalonia’s political future, on the understanding that this future may depend on other legal and
political parameters than those that dene the system of autonomous regions envisaged by the Constitution
and Statute currently in force. It should be remembered that this resolution was passed after the Constitutional
Court Judgement STC 31/2010, of 28 June, on the Statute of Autonomy which, as may be reasonably deduced,
had an appreciable effect on the Catalan Parliament’s crisis of condence as regards the autonomous region
formula of self-government.
This moment probably marks an important change in the political strategy, as it meant abandoning the
statutory path and opting for a new scenario geared towards the goal of achieving Catalonia’s independence
and creating its own state. Although the resolution makes no explicit reference to independence, it is obvious
that it opens up this possibility when it afrms “the need for Catalonia to make its own way” so that “the
Catalan people can decide their collective future freely and democratically”, appeals for “dialogue with
the international community, the European Union and the Spanish Government” and, nally, calls on the
2 Published in the BOPC, No. 120, 18 December 1989.
3 Published in the BOPC, No. 327, 13 October 1998.
4 This resolution was approved in committee (Institutional Affairs Committee) and published in the BOPC. No. 657, 22 March 2010.
5 Published in the BOPC, No. 390, 2 October 2012.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 5
Catalan Government to consult the people of Catalonia on their collective future. This is conrmed in the
resolution itself when, in another section, it proclaims and raties the imprescriptible and inalienable right to
self-determination, judges it necessary to launch a process to become a new state in Europe and considers it
essential to equip Catalonia with an instrument whereby its citizens can be consulted on these questions, an
instrument that must be built on the Catalan Parliament’s “own legality and legitimacy”.
With regard to these initial parliamentary declarations on the right of self-determination and the right to
decide, it is important to stress that, from a strictly legal perspective, the basic political approach they express
is not in any clear or evident contradiction with the Constitution. The right of self-determination can be
understood in internal terms, that is, as an aspiration to change a people’s legal and political status without
that necessarily taking the form of a state independence process, or external terms, in other words, the latter.
Moreover, even in the latter scenario, the start of an independence process is not unconstitutional in itself,
because the Constitution does not exclude its possible reform if its promoters do not exclude the possibility
of following this path either. Nor is the will to hold a consultation based on Catalan legality decisive in the
opposite sense, as the Catalan institutions still believe it is possible to hold one by means of an Act on non-
referendum consultations, exercising the Catalan Government’s powers under Article 122 of the Statute of
Autonomy of Catalonia (SAC).
3 Resolution 5/X and the beginning of constitutional conict
The concept of right to decide has an essentially political character that Resolution 742/IX associates
directly with the capacity or decision of a body of citizens (in this case, those of Catalonia) to freely and
democratically decide their collective future.6
As a juridical concept it has no dened value, nor can it be considered to correspond exactly to the right
of self-determination, though that may be the result. The relationship that Resolution 742/XI establishes
between this right and holding a consultation seems to give it more of an instrumental rather than a decision-
making meaning. The right to decide is thus a right to be able to express a will or opinion on the political
future of the Catalan people. This instrumental character was conrmed in the later Resolution 5/X, of 23
January 2013, which approved the Declaration of Sovereignty and the Right to Decide of the People of
Catalonia.
This parliamentary resolution was a declaration of intent to start the process whereby the citizens of Catalonia
could exercise the right to decide on their political future in accordance with the principles outlined in the
resolution itself. So it is clear that, despite a degree of calculated ambiguity and the absence of any specic
reference to convening a consultation, the resolution presupposes that. This is conrmed in the preamble,
where it is directly linked to Resolution 742/IX as a reminder that the latter linked the “right to decide”
to the need for the citizens of Catalonia to express themselves on their collective future “by means of a
consultation”.
Among the principles that have to guide the process of giving effect to the right to decide, Resolution 5/X
highlights sovereignty above all, afrming that the people of Catalonia, for reasons of democratic legitimacy,
have the “nature of a sovereign political and legal subject”. The other principles are not as politically charged
and refer to the need for the process to develop in accordance with the rules of democracy, transparency,
dialogue with the State, European institutions and the international community as a whole, respect for the
founding values of the European Union, recognition of the role of Parliament as the main institution in this
process and the participation of the political forces and social actors.
6 On the concept of right to decide and its political and legal implications, see Barceló, Mercè [et al.]. El derecho a decidir. Teoría y
práctica de un nuevo derecho. Barcelona: Atelier, 2015; Ridao, Joan. “Sobre la ‘Declaració de sobirania i del dret a decidir del poble
de Catalunya’ i el seu exercici per la via d’una consulta popular. Estat de la qüestió». Revista de Catalunya, Issue 285 (June 2014),
p. 49ff.; Vintró, Joan. “La Declaració de sobirania i del dret a decidir del poble de Catalunya: un apunt jurídic”. Barcelona: Revista
Catalana de Dret Públic [blog], 2013 [Consulted: 8 May 2013]; Tudela, José. “El derecho a decidir y el principio democrático”.
Teoría y Realidad Constitucional. Madrid: UNED, Issue 37 (2016), p. 477ff; Jiménez, José J. “Principio democrático y derecho a
decidir”. REAF. Barcelona: Government of Catalonia. Ministry of the Presidency, Issue 19 (April 2014), p. 211ff; Ferreres, Víctor.
“Cataluña y el derecho a decidir”. Teoría y Realidad Constitucional. Madrid: UNED, Issue 37 (2016), p. 461ff.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 6
As might easily be deduced, the most contentious point in the resolution was recognising the Catalan people
as, or attributing to them the character of, a sovereign political and legal subject. None of the other principles
pose a special problem, especially when the reference to the principle of legality allows one to deduce a
will for the process to respect the legal system and the constitutional framework in particular. Nevertheless,
it is obvious the declaration of sovereignty could be a problem in the latter sense, depending on how it is
interpreted and the value and effects that could derive from the nature of the parliamentary act in which it is
formulated.7
Parliamentary resolutions such as 5/X are acts by means of which Parliament expresses a declaration of
intent, as a result of carrying out its role of supervising and promoting government action. This declaration
of intent can be addressed to the Government or citizens of Catalonia8 and has neither a regulatory character
nor the binding nature of a regulation. The doctrine notes these are acts of an intrinsically political nature and
they can only be subject to political control through Parliament. In that regard, some authors have gone as far
as to assert that these parliamentary acts can be considered alien to the world of law.9
However, this did not prevent the Spanish State Government from bringing a challenge to Resolution 5/X
before the Constitutional Court, opening up a channel unknown until then by allowing a judicial review
of a parliamentary act of this nature. The key issue that needed to be determined, therefore, was whether
Resolution 5/X, despite its essentially political character, could also be regarded as an act with legal effects,
since this was crucial in paving the way for the Constitutional Court to intervene on the assumption the
resolution could give rise to a problem that is constitutional at root.
This question was resolved by the STC 42/2014, of 25 March, which established for the rst time a doctrine
on the legal effects of parliamentary acts promoting government action, with the understanding that the
legal effects are not “binding” on the government or citizens in the sense of a legislative act. The Court
applies a particularly lax criterion on this point and considers that, despite its markedly political character,
the resolution could have consequences of a legal nature. And it justies this conclusion on the basis that
the declaration could lead to the recognition of powers in relation to a group or an institution that have not
been conferred on them by the Constitution, an inference that the assertive tone in which the parliamentary
declaration is expressed could warrant.10
The Constitutional Court uses this doctrine to declare the rst principle of the resolution (declaration of
the sovereignty of the Catalan people) unconstitutional, null and void because it regards that as contrary to
Article 1(2) of the Spanish Constitution, which proclaims national sovereignty belongs to the Spanish people.
The Court concludes that only the latter are sovereign, and “exclusively and indivisibly” so, which means no
other subject or State body, or part of this people, can be endowed with an attribution of sovereignty already
established by the constituent powers. Here the arguments used in the judgement to infer the resolution has a
legal content take on special importance, because they seem to be aimed at preventing any possibility of the
7 See the pleadings submitted by Parliament against the challenge to Resolution 5/X brought before the Constitutional Court. In
theses it is argued (especially in sections II and III) that the resolution is a strictly political act with no legal effects that might be
subject to legal control.
8 Resolution 5/X is the result of a parliamentary initiative processed in accordance with Article 164 of Parliament’s Rules of
Procedure, which allows members and parliamentary groups to present draft resolutions for promoting political and government
action with one of these ends.
9 Santaolalla, Fernando. Derecho parlamentario español. Madrid: Dykinson (2013), p. 422. ISBN 9788490316214.
10 With regard to STC 42/2014, see:
Tajadura, Javier. “La STC 42/2014, de 25 de marzo, respecto de la Resolución del Parlamento de Cataluña 5/X, de 23 de enero de
2013, por la que se aprueba la declaración de soberanía y del derecho a decidir del pueblo de Cataluña: la introducción del ‘derecho
a decidir’ en el ordenamiento jurídico español”. In La última jurisprudencia relativa al Parlamento: seminario celebrado en Vitoria-
Gasteiz los días 27 y 28 de enero de 2016. Vitoria-Gasteiz: Eusko Legebiltzarra = Basque Parliament, 2016, p. 57-90.
Vintró, Joan. “El Tribunal Constitucional y el derecho a decidir de Cataluña: una reexión sobre la STC de 25 de marzo de 2014”
[online]. Barcelona: Revista Catalana de Dret Públic [blog], 2014 [Consulted: 8 May 2013].
Ridao, Joan. “La juridicación del derecho a decidir en España: la STC 42/2014 y el derecho a aspirar a un proceso de cambio
político del orden constitucional”. Revista de Derecho Político. Madrid: UNED, Issue 91 (2014), p. 91ff.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 7
declaration of sovereignty giving rise to an implicit capacity to adopt decisions or measures that are the right
of a sovereign power, in particular, to call a unilateral referendum of self-determination.
However, this pronouncement does not imply the Constitutional Court rejects the right to decide recognised in
Resolution 5/X. In fact, leaving aside the point regarding the declaration of sovereignty, the Court accepts the
constitutionality of the rest of the resolution and of the concept of the right to decide itself, when it considers
a political project that might involve altering the foundations of the established constitutional order (such
as one that puts forward the goal of independence) could be prepared and promoted legitimately, provided
this is done without undermining democratic principles, basic rights or other constitutional mandates. In that
sense, the Court understands that the rest of the principles contained in Resolution 5/X are compatible with
these conditions, bearing in mind the Constitution does not establish a “militant” model of democracy and,
therefore, there is no core that is inaccessible to constitutional reform.
Basing itself on these criteria, the Constitutional Court accepts the constitutional legitimacy of the right to
decide as a process intended to promote and defend a goal initially contrary to the tenets of the Constitution,
but on the understanding that any actions that may derive from this process, as well as its outcome, ensure
its “effective achievement” respects the constitutional “reform procedures”. The Court understands that, a
priori, (leaving aside the rst principle) the resolution does not exclude following established constitutional
channels to turn the political wish expressed in it into a legal reality and, therefore, accepts its constitutionality
in accordance with the principles of democracy and legality, which thus nd their point of equilibrium.
Judgement 42/2014 raised some important interpretive doubts regarding the room for manoeuvre that
promoting and defending the political project expressed in Resolution 5/X might have, especially with
regard to the central question of being able to exercise the right to decide by means of a popular consultation.
This question has been dealt with in other Constitutional Court judgements that we will comment on later.
What is important to stress here is that this rst episode in the conict between the Catalan Parliament and
the Constitutional Court basically served to clear up two things: rstly, that the Catalan political authorities
and Catalan citizens may promote the political project for independence as an expression of democracy and,
despite its initial opposition, within the Constitution; and, secondly, that this democratic expression, along
with the activities that support it and give it content, have to accept the application of constitutional reform
procedures so the project may become a “legal reality”. That means placing them outside the Constitution if
the intention is to achieve the desired end by excluding those reform procedures.
4 The will to exercise the right to decide in accordance with the constitutional and statutory
framework
STC 42/2014 had the effect of recognising the right to decide not only from a political viewpoint but from
a legal one too, something that perhaps was not fully appreciated. Although the judgement does not directly
consider the nature of this right, a reading of the legal grounds shows it is understood as one more expression
of the democratic principle, in the specic sense of trying to drive a process to achieve a political goal, even
though this might not be compatible with the existing Constitution. The absence of constitutional intangibility
clauses enables this recognition but only on the condition it becomes a reality within the framework of the
constitutional reform procedures. The Court itself points out that the Generalitat has the power to move a
reform of the Constitution and that, should it do so, the Spanish Parliament would have to consider it.
As indicated in the previous section, one of the aspects which raises the most doubts with regard to
recognising the right to decide are the activities that the Catalan public powers might promote to exercise
it. The Court makes it clear that one of these is the proposal for constitutional reform, regarding which it
seems to infer a certain binding effect in relation to its processing when it says, literally, that “the Spanish
Parliament shall (deberá) consider it”. The reference that the STC 42/2014 makes to the decision of the
Supreme Court of Canada, of 20 August 1998, in which it rejected the possibility of a province unilaterally
seceding while requiring the federal government and province to negotiate if the result of the referendum was
clearly in favour of the latter’s independence, might suggest the Court’s use of the term deberá is intended
to exclude the inadmissibility of the proposed reform at the rst parliamentary procedural stage of taking it
into consideration.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 8
However, it is difcult to support this interpretation for two reasons. Firstly, because STC 42/2014 does
not make any pronouncement on holding a consultation regarding the right to decide. Moreover, there are
rulings against holding referendums or consultations with similar characteristics. In our case, therefore, the
main element that the Supreme Court of Canada based the obligation to negotiate on would be missing. The
second reason is the difculty of inferring a legal processing obligation or duty in an essentially political and
parliamentary decision-making setting, namely an act of considering a legislative initiative.
Aside from the possibility of initiating a constitutional reform procedure, the fundamental question
of exercising the right to decide is, without doubt, determining whether within the room for manoeuvre
afforded by STC 42/2014 there is the possibility of calling the citizens to take part in a referendum to vote on
Catalonia’s political future. It is worth remembering that this was precisely the ultimate meaning of the right
to decide, as dened in resolutions 742/IX and 5/X approved by the Parliament of Catalonia.
STC 42/2014 gives legitimacy and constitutional cover to carrying out activities that promote and defend the
political project that the right to decide involves, including the independence of Catalonia, but, as has been
pointed out, at no point does it say these activities include promoting the holding of a popular consultation.
However, this possibility could be asserted by virtue of the fact that it is not clearly excluded by the judgement
and because the validation of Resolution 5/X (apart from the rst principle) would imply accepting the
possibility of holding the consultation, given this is the essence of the right to decide in the terms expressed
by Resolution 5/X and the earlier Resolution 742/IX, which was not challenged.11
This possibilist interpretation of the consultation is the line taken by Catalonia’s political institutions, as their
subsequent actions show. For example, in 2013, Parliament approved Resolution 17/X, of 13 March 2013,12
urging the Catalan Government to “start a dialogue with the Government of the Spanish State to enable a
consultation of the people of Catalonia to be held to decide on its future”. Even more importantly, Parliament
later passed Resolution 479/X, of 16 January 2014,13 in which it agreed to submit to the Congress of Deputies
a draft organic act delegating to the Generalitat the power to authorise, call and hold a referendum on the
political future of Catalonia.
These resolutions came after Resolution 5/X and before STC 42/2014 but in any event they clearly illustrate
two things. First, the close relationship between the concept of right to decide and holding the consultation.
And second, the willingness then to channel the right to decide and the consultation through a process
agreed with the State. Submitting the draft act to the Spanish Parliament is unequivocal in that sense, as a
compromise was being sought between the State’s power to authorise a referendum (SC Art. 149(1)(32))
and the possibility of delegating the calling and holding of the referendum to the Generalitat under SC
Article 150(2). This compromise solution was also evident in the provision that calling the referendum
would be conditioned by the “terms agreed with the Government of the State”, despite it being delegated to
the Generalitat.
5 The right to decide does not cover calling the people of Catalonia to take part in a
consultation on their collective political future: constitutional case law in relation to
referendums and popular consultations
The fact that there is no explicit reference in STC 42/2014 to holding a popular consultation or, more
specically, to denitively excluding this possibility (except in the case of a unilateral referendum on self-
determination, which is referred to and explicitly discarded in the judgement) encouraged the Catalan
Parliament to feel legitimised in trying this approach by means of a regulation on non-referendum popular
11 The manifesto issued by jurists who support the right of Catalonia’s citizens to hold a referendum to decide the future of
Catalonia, and presented at the Barcelona Bar Association on 3 May 2017 [Consulted: 8 May 2017], maintains the right to decide
not only recognises the right to dissent from the established constitutional order and territorial unit, but also the right to propose
alternatives expressed by means of a democratic procedure, usually a referendum, and then negotiate with representatives of the State
to give shape to the result obtained.
12 Published in the BOPC, No. 43, 18 March 2013.
13 Published in the BOPC, No. 239, 17 January 2014.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 9
consultations in Act 10/2014, of 26 September, on Non-Referendum Popular Consultations and Other Forms
of Citizen Participation.14
This legislative initiative was presented as the only possible way to express the right to decide after the
Spanish Parliament had rejected the draft organic act submitted by the Catalan Parliament to agree with the
State the delegation to the Generalitat of the power to call a referendum in the terms expressed in the previous
section. The option of drafting a law on non-referendum popular consultations could be seen to comply with
the powers bestowed by Article 122 of the Statute of Autonomy of Catalonia (SAC) based on the theoretical
difference referendum-type consultations and other kinds. This distinction was essential because Article
149(1)(32) of the Spanish Constitution (SC) reserves the power to authorise popular consultations by means
of a referendum for the State and because, following its judgement STC 31/2010, of 28 June (Ground 69),
the Constitutional Court had established the doctrine whereby the State is not only the competent body for
authorising referendums but also for establishing their legislative regulation.
The Catalan Government’s room for manoeuvre was therefore reduced to regulating non-referendum
consultations by interpreting SAC Article 122 in the broadest possible sense. However, that raised a
key problem difcult to resolve, namely the need to distinguish between a non-referendum consultation
and a referendum, when the former also has the basic features that characterise the latter, especially the
coincidence, or rather, similarity with the subject called upon to participate by exercising the right to vote
and the application of a procedure and safeguards similar to those of an electoral process.15
With some minor variations compared to the regulation of referendums, Title II of Act 10/2014 regulated
general consultations (Arts. 3 to 39) and this was challenged by the State, which understood that what was
being regulated under this heading was in fact a referendum consultation. In STC 31/2015, of 25 February,
its judgement on this appeal, the Constitutional Court accepted the State’s thesis in considering the regulation
established to be that of a referendum, which is characterised by calling on all the citizens of a specic
territory (in this case Catalonia) to exercise the fundamental right of participating in public affairs (SC Art.
23(1)), expressing their opinion on a specic issue, whether binding or not, by means of a vote that enjoys the
safeguards of an electoral process.16 This opinion was not shared by the Council of Statutory Guarantees in
its Ruling No. 19/2014, of 19 August, although four dissenting votes argued essentially as the Constitutional
Court did later.
STC 31/2015 considers the fact that the Act broadens the electorate does not prevent the subject called
upon to participate from being the same as that of a referendum (electoral roll) and that. when it comes to
establishing the essential difference with a referendum, the variations contained in the Act with regard to
the participatory procedure are not relevant, because this consists of casting a vote, i.e. exercising the right
of active suffrage (SC Art. 23.1) At this point STC 31/2015 recalls the doctrine established by the earlier
judgement STC 103/2008, of 11 September, which identied the notion of referendum by referring to the
electoral body and electoral procedure, i.e. the electoral roll, to the electoral administration and some specic
judicial safeguards. And it considers that, despite a possible “legislative distortion” of these elements, the
consultation is still a referendum if its “intrinsic” nature means the basic features and effective condition
of referendum can be attributed to it. In line with that, the judgement concludes that general consultations
regulated by Act 10/2014, of 26 September, constitute “a genuine referendum consultation”, which led it
to declare the part of the Act that affects these kinds of consultations unconstitutional. This declaration of
unconstitutionality was, naturally, extended to Decree 129/2014, of 27 September, issued by the President
14 On this Act, see Alonso, Àngel L. Análisis constitucional de la ley catalana de consultas populares no referendarias y otras
formas de participación ciudadana. Pamplona: Aranzadi, 2015. ISBN 9788490982594.
15 Regarding the Generalitat’s powers in relation to popular consultations, see: Álvarez, María Isabel. “La participación directa de
los ciudadanos en la Constitución española y las consultas populares en el ámbito estatutario”. Revista de Derecho Político. Madrid:
UNED, Issue 96 (2016), p. 121ff; Bossacoma, Pau. “Competències de la Generalitat de Catalunya sobre regulació i convocatòria
de consultes populars”. REAF. Barcelona: Government of Catalonia. Ministry of the Presidency, Issue 15 (2012), p. 241ff; Castellà,
Josep M. “Consultas populares no referendarias en Cataluña, ¿es admisible constitucionalmente un tertium genus entre referéndum
e instituciones de participación ciudadana?”. In Transparencia, participación ciudadana y administración pública en el siglo XXI.
Zaragoza: Gobierno de Aragón, Departamento de Hacienda y Administración Pública, 2013, p. 121ff. (Monographs of the Revista
Aragonesa de Administración Pública; XIV)
16 Ground (FJ) 6 of STC 31/2015, of 25 February.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 10
of the Generalitat and by means of which a non-referendum popular consultation was called on Catalonia’s
political future for 9 November, in accordance with Act 10/2014.17
Regardless of what has just been outlined, another aspect of constitutional case law should be noted that
affects the limits of the right to decide and goes beyond the discussion on whether the Generalitat has the
competence to promote a popular consultation. In relation to a referendum, the Constitutional Court had
already pointed out in STC 103/2008, of 11 September, that this cannot be used, even in a consultative
form, to learn the opinion of the people on key issues resolved through the constituent process and which,
therefore, have to be regarded as outside the decision of the constituted powers If the question or issue
affects the constitutional order, the only referendum possible according to the Constitutional Court is the one
envisaged by the procedures for reforming the Constitution.
STC 31/2015 recalls this doctrine and extends it to non-referendum consultations as well. It also notes
that the constraint on consultations involving issues resolved by the constituent power applies to all public
powers, including bodies of the State. Finally, it says that this doctrine must be applied particularly to issues
that might affect the fundamental point of a single sovereign subject, so they are openly and directly dealt
with through the channel that the Constitution has envisaged for this purpose.
The conclusion that can be drawn from the doctrine established by STC 103/2008 and STC 31/2015,
therefore, is that neither the Generalitat nor the State can call a referendum or a popular consultation that
might affect the constitutional order, as one designed to ask people on the independence of Catalonia in
exercising their right to decide would do. As can easily be deduced, constitutional case law is especially
rigid and the prohibition which ows from this even casts doubt on the possibility of the State calling a
referendum in the hypothetical situation it reached an agreement with the Generalitat to question the Catalan
people on the political future of Catalonia, if the question could affect the constitutional status quo.
It is worth mentioning that this interpretation has been called into question by one doctrinal camp which
understands that while it could be applied as a general rule, there are reasons that would justify making an
exception in the case of a referendum on self-determination, because there is no sense in starting a particularly
complex reform process like the one envisaged by the Constitution if, prior to that, it has not been possible
to verify the existence of a majority will among the population affected.18 Nevertheless, it is also true that
holding a referendum beforehand, despite its consultative character, could, in the hypothetical case of a
positive result, pose important political and legal problems that would inevitably have repercussions on the
constitutional reform process.
In any event it is interesting to note that the case-law doctrine outlined, short of any modication or important
qualication in the future, currently prevents the holding of a referendum or any other form of consultation
addressed to the citizens of Catalonia with the aim of questioning them on the independence of Catalonia
or the creation of a Catalan state. This means, as can be deduced from STC 31/2015,19 that the margin for
action indicated by STC 42/2014 with regard to the right to decide is determined by the existence of a space
for dialogue, cooperation and negotiation between the public powers which does not exclude any system or
legitimate institution capable of helping to resolve a political conict, nor any procedure that respects the
constitutional framework. But that is on the assumption there will be no room for holding any consultation in
this margin for dialogue and possible negotiation. Consequently the doctrine that ows from STC 103/2008,
STC 31/2015 and STC 32/2015 represents a major constraint on the hopes that appeared to be have been
aroused by STC 42/2014 with regard to Resolution 5/X, in that the application of its principles in practice
would not legitimise calling a consultation.
17 Decree declared unconstitutional, null and void by STC 32/2015, of 25 February.
18 Rubio Llorente, Francisco (9 October 2013). Un referéndum para Cataluña. El País; De Carreras, Francesc (20 September
2012). Un referèndum? La Vanguardia; Ferreres, Víctor. “The secessionist challenge in Spain: an independent Catalonia?” [online].
I-CONnect, Blog of the International Journal of Constitutional Law and ConstitutionMaking.org [blog], 2017 [Consulted: 8 May
2017]; Arbós, Xavier (7 February 2017). Un referèndum vinculant impossible. El Periódico; Bossacoma, Pau. Justícia i legalitat de
la secessió: Una teoria de l’autodeterminació nacional des de Catalunya. Barcelona: Government of Catalonia. 2015, p. 336-337.
19 Ground 6, B), a); Aláez, Benito. “Constitucionalizar la secesión para armonizar la legalidad constitucional y el principio
democrático en estados territorialmente descentralizados como España”. REAF. Barcelona: Government of Catalonia. Ministry of
the Presidency, Issue 22 (October 2015), p. 136ff.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 11
6 The call for elections on 27 September 2015 and the unilateral turn of the independence
process
The elections called for 27 September 2015 to the Parliament of Catalonia marked an important change
of direction in the right-to-decide strategy. They were called in a frank and open manner as a plebiscite to
measure the social support for independence and thereby legitimise, should they show majority support in
Catalan society, opening up a non-subordinate process, i.e. one not dependent on any necessary agreement
with the Spanish State.
This new approach was based on recognising the fact that the State had not allowed a consultation on the
right to decide to go ahead (neither by agreement nor by means of a non-referendum consultation moved by
the Generalitat itself). Given this deadlock, the citizens of Catalonia would have to decide directly on their
future as a people. Calling the elections as a plebiscite thus represented an attempt to hold the consultation
by using the only legally possible means and, therefore, meant accepting this participatory instrument (the
elections themselves) could produce results similar to those of a referendum.
It is important to point out the political impact that this political focus had on the actual conguration
of the candidates, namely, the formation of the Junts pel Sí [Together for Yes] coalition comprising the
main pro-sovereignty forces (CiU and ERC) and independent candidates known for their commitment to
independence. Nor will it escape the attention of any reader that the intention behind this coalition was to
obtain an absolute majority in Parliament, so it is of special interest to recall the basic lines of the electoral
programme as far as the independence roadmap is concerned.
This roadmap begins with a historical summary of the political situation in Catalonia, starting from the 1978
Constitution and the 1979 Statute of Autonomy, which can be explained in various stages: the autonomy
period up to STC 31/2010, on the 2006 Statute of Autonomy; the scal agreement years of 2010-2012,
and the right-to-decide years, dened as the attempt to hold a consultation on independence (2012-2015).
After noting that these stages are over as a result of the State’s inability to offer an adequate response, the
electoral programme envisages the start of a political and legal process following the elections called for 27
September 2015, provided that this proposal achieved the majority support that would give it legitimacy.
According to the Junts pel Sí programme,20 this new stage would consist of the following stages: an initial
declaration of the process towards independence based on the democratic mandate obtained in the elections
of 27 September 2015; drafting the legal transition and constituent process laws, prior to the declaration
of Catalonia’s independence, and, nally, calling constituent elections and holding a referendum to ratify
the new Catalan constitution. The so-called State structures would be created as these stages unfolded and
a schedule drawn up for negotiating with the State, the European Union and the international community
without excluding, as far as the Spanish State is concerned, the possibility of going back to the initial plan if
it was possible to agree on holding a binding referendum.
What is very clear from the points outlined above is the importance of the elections of 27 September 2015
as a political act taking the right to decide down a route that puts negotiations with the State to solve the
conict on the back burner and adopts, as its main strategy, self-recognition of the right of the people of
Catalonia and its institutions to initiate and conclude a process towards independence. In the end the results
of the 27 September elections did not give the Junts pel Sí coalition a majority of votes or seats in Parliament.
However, it was possible to constitute a parliamentary majority in favour of this process with the support of
the Candidatura d’Unitat Popular - Crida Constituent (CUP), an agreement that also allowed the creation of
a government dominated by the political force with the largest parliamentary representation (Junts pel Sí).
The conditions under which this political agreement was forged and the vicissitudes it has experienced in
the course of this legislature give rise to many questions that we will not deal with here. Nevertheless, it is
necessary to point out that one of the most important consequences of its evolution has been the emphasis
placed on the unilateral nature of the process which, among other consequences, has had a major impact on
the relations between the Catalan Parliament and the Spanish Constitutional Court.
20 Programa electoral de Junts pel Sí, p. 30-40.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 12
7 Resolution 1/XI of the Parliament of Catalonia, of 9 November 2015, on the start of the
political process in Catalonia as a consequence of the election results of 27 of September
2015
Resolution 1/XI, of 9 November 2015,21 as the rst parliamentary act of the new legislature (before the
swearing-in of the new president and constitution of the new government) has a special importance with
regard to the start of the independence process in the terms outlined in the previous section. Whereas
Resolution 5/X posed the right to decide in a context of compatibility with the Constitution, Resolution 1/XI
marks an important turning point in that regard, as the Constitutional Court itself noted in STC 42/2014 (with
the exception we already know about). From a legal perspective, the big difference it presents compared
to Resolution 5/X is the fact that it clearly and unequivocally expresses the will to initiate the process of
creating an independent Catalan state in the form of a republic and approve the laws required to make the
“disconnection” of Catalonia from the Spanish State possible. Even though Resolution 1/XI does not say
so directly or explicitly, the process is seen as a unilateral one that does not take the constitutional reform
processes into account, as it implies when it afrms a “non-subordinate” constituent process is being initiated
and adds that neither the Catalan Parliament nor the disconnection itself “will be subject to the decisions
of the Spanish State, in particular of the Constitutional Court”. This declaration is supplemented by the
directive addressed to the Catalan Government to “comply exclusively with the laws and mandates of [the
Catalan] Parliament”.
From the outset Resolution 1/XI raises an important political and legal problem by setting the democratic
principle against the principle of legitimacy. It prioritises the former over the latter in considering the result
of the elections held on 27 September 2015 enables the Catalan institutions to start a process leading to
independence without necessarily being conditioned by constitutional and statutory legality. The parliamentary
groups that supported the resolution’s approval22 understand those elections gave Parliament a “mandate”
to initiate a process leading to independence, on the assumption that this democratic mandate implies de
facto recognition of the sovereignty required for starting and completing this route. That means attaching
less importance to the rules of the constitutional system in general and those that dene and condition the
institutional position of the Catalan Parliament and Government in particular.
However, it should be remembered that the nature of the electoral process on 27 September 2015 (elections
to the Catalan Parliament) has only enabled the formation of a parliamentary majority that is objectively in
accordance with the current electoral system. It does not correspond to a majority of the votes cast being
obtained by the political forces driving the process designed in Resolution 1/XI. If, from a political point
of view, the elections were supposed to prove the existence of a social majority in favour of Catalonia’s
independence, they did not achieve this political objective, nor does it seem right to distort that by using the
criterion of seats won. Furthermore, from the perspective of the democratic principle, which is fundamental
in the process begun by Resolution 1/XI, it clearly shows a weakness from the outset when the intention is
to legitimise a break with the current legal framework in force to achieve independence. The election results
should have given rise to some serious reection on whether the votes received paved the way for taking the
step that Resolution 1/XI entails or whether it was necessary to broaden the social support for another better
strategy for continuating the process.
A second weakness that may serve to challenge the appeal to democratic principle as the legitimising source
of the process is that of segregating the idea of democracy from that also expressed by the general bodies
of the State, legitimised in turn by the electoral processes in which Catalonia’s citizens have also taken
part. As has been pointed out before, the idea that emanates from the substance of Resolution 1/XI is that
the Parliament and people of Catalonia are already sovereign powers, which is a necessary condition for
considering as full and independent the democracy that emanates from the Catalan people and is represented
by their Parliament. That necessarily implies a confrontation between two mandates that are equally
democratic: one that legitimises the unilateral route to independence and another that legitimises the status
quo. A coherent reading of Resolution 1/XI shows that Parliament believes the citizen mandate it got from
21 Published in the BOPC, No. 7, 9 January 2017.
22 Resolution 1/XI was approved by the votes of Junts pel Sí and the Candidatura d’Unitat Popular - Crida Constituent.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 13
the electoral process of 27 September 2015 enables it to transcend the principle of constitutional legality
which derives from the 1978 Constitution. This democratic mandate would be the source of an alternative
power and legality creating a new political and legal reality that would make it possible to achieve the goal
of Catalonia becoming an independent state by its own will.
Either way the considerations outlined above make it clear there is a very serious juridical conict between
two basic principles inherent in Western democracies, namely, democracy and legality, two principles that
cannot be separated because they are necessarily interrelated. The constitutional clauses that dene a state
as “democratic State of Law” merely show that, in any democratic system, democracy and legality are
indissolubly linked or, to put it more practically and plainly, two sides of the same coin. It could not be any
other way because democracy is what creates legality through the actions of parliamentary representatives,
and legality is legitimate because the result of exercising democracy. It shouldn’t be forgotten that in any
democratic society, all legality is subordinate to a constitution and this, naturally, is also based on the
democratic principle. Consequently, in a democratic state with the rule of law, there is no higher expression
of the democratic principle by all the political powers than that which represents the Constitution and the
rules which, in accordance with it, determine the decision-making capacity or measure of all the constituted
powers.
Setting the democratic principle against the principle of legality could be justied in a political context
in which legality has not been established as a consequence of the former. It is possible in such a setting
to accept the primacy of the democratic principle to carry out a transition or break with the rules of an
authoritarian state in the interests of a new, fully democratic and constitutional regime. But it could be
dangerous to confuse such a situation with the shortcomings that affect the democratic quality of a state
which, despite that, maintains the essential elements that dene it as democratic with the rule of law, above
all if that continues to be the image that the international community has of it. To pretend, on the basis of
certain shortcomings, that the Spanish State still maintains authoritarian (post-Franco) forms of governance
that make it undemocratic, could lead to a serious error of political and particularly legal judgement.
From an ideological perspective it is possible not to share this conclusion and to consider the people of
Catalonia as a sovereign political and legal subject with full capacity for self-determination. This conclusion
could be sustained by conviction from the outset or as a result of the democratic devaluation of the constitutional
system of the Spanish State and the repeated refusal to offer a way out within the constitutional framework in
response to a legitimate social demand with a democratic basis. However this interpretation of the political
situation in Catalonia and Spain should not ignore or underestimate the more complex scenario outlined
above nor the instruments that the State has at its disposal for defending the integrity of the Constitution.
An independence or secession process could prove more difcult to carry out in a democratic system than in
another system, even though that might seem contradictory. A consolidated democracy implies the existence
of a stable political and legal framework, and the guarantee that any substantial change is carried out within
the framework established by the Constitution. This might make an independence process very complex and
subject to political compromises and agreements, as the unilateral route casts doubt on a system based on the
need to maintain a balance and respect for its basic principles and values.
For that reason, a process of this kind has the added burden that it needs to be planned as scrupulously as
possible within the constitutional framework and rely on the necessary perseverance to seek dialogue and
negotiation using formulas that enable the democratically expressed will to be reconciled with instruments
that do not violate constitutional legality. Perseverance that is especially incumbent on anyone who intends
to alter the status quo and forces them to show they have exhausted all the possible courses of action within
the constitutional framework, while accepting the other party, the State, also has the right and democratic
legitimacy to defend the Constitution.
As the Supreme Court of Canada said in its pronouncement in 1998,23 a secession process does not merely
depend on the will of a majority expressed by the citizens of a territory that might have the characteristics
of a national community, because the Constitution does not cover a unilateral secession project. That will, in
23 Consultative decision of 20 August 1998.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 14
theory, has to respect the constitutional legality which, in any event, requires loyal political negotiation that
does not exclude the necessary constitutional reform. But, as the Supreme Court of Canada also recognised
then, the facts show that many independence processes have resulted in de facto recognition, that is, not by
means of a constitutional reform but through the international community recognising the new state. This,
therefore, is the nal scenario to consider A scenario where law has little to say and in which the eruption of
a new state reality depends on certain factual circumstances which make it possible.
Resolution 1/XI opens the way to this scenario and there are essentially two main unknown quantities:
whether the fact it is the last resort, the breakaway route, justies it; and whether the de facto route (despite
the legal appearance that the disconnection laws want to give it) will be capable of imposing itself and
lead to the real and effective creation of an independent state recognised by the international community.
Unravelling these unknowns is a complex task that is not the aim of this study. However, it is possible to offer
some thoughts on each of them without pretending to provide conclusive answers.
With regard to the breakaway option led by Parliament by means of the will expressed in Resolution 1/
XI (maintained in other resolutions we shall refer to later), it has to be recognised that the dialogue and
negotiation route that once inspired Resolution 5/X, more than coming to an end, has shown itself to be
inaccessible. From a political point of view it is undeniable that the State has pursued a line that is clearly
opposed to the possibility of negotiating a referendum or a consultation on the right to decide and has aborted
all the initiatives that the Generalitat has taken in that direction. The margin for action is also very limited
from a legal viewpoint because the Constitutional Court, despite initially having played up the principle of
dialogue and negotiation, and the political game that should be respected in a case like this (STC 42/2014),
has clearly excluded the possibility of holding a consultation that is not a referendum on constitutional
reform (STC 103/2018, STC 31/2015 and STC 32/2015). This particularly rigid doctrine is in contrast with
the situation in Canada, for example, where the possibility of holding a referendum called by a province prior
to secession is accepted, although its impact on forcing the State to negotiate is conditioned by the terms
of the Clarity Act (in French, Loi de clarication) of 29 June 2000 and a subsequent constitutional reform.
This political and legal conduct on the part of the State institutions cannot, therefore be regarded as particularly
respectful towards the democratic principle, in the sense of allowing its expression to verify, at least, whether
there is a social majority in favour of independence and, on the basis of that, develop a procedure for offering
a political and legal response.24
With regard to the practical feasibility of the disconnection process designed by Resolution 1/XI, it has to
be acknowledged there are various reasons for thinking that going down this route could be premature and
not very realistic. The rst factor concerns what ought to be its main strength, namely the existence of a
social majority in favour of independence, because at the present time we do not know if there is a majority
and the only objective data that might help us in that regard, the election results of 27 September 2015, do
not prove it either.25 The second factor is the State’s capacity for reaction. It has important political and
legal instruments at its disposal for opposing and stemming the disconnection decisions announced. And
the third factor could be the limited receptiveness to the Catalan cause shown thus far by the international
community, which is usually resistant to any change in the status quo and also committed to the Spanish
State as a recognised international player, especially as a member of the European Union. The international
community, therefore, does not seem particularly favourable towards recognising the unilateral route, and
even less so the European Union, which attaches special importance to legality as a founding value, together
with the democratic principle.
24 The possibility has been raised of contrasting the conduct of the Spanish State with respect for the founding values of the
European Union recognised in TEU Article 2, since the values of democracy and legality have to maintain a balance which could be
broken if formal legality unjustiably compromises a legitimate expression of democracy that has broad social support. See: Bayona,
Antoni. “El “dret a decidir” i els valors fundacionals de la Unió Europea”. REAF, No. 20 (October 2014), p. 132ff.
25 The percentage of votes received by the political forces that declared their support for independence (Junts pel Sí and the
Candidatura d’Unitat Popular - Crida Constituent) was 47.8% [Consulted: 8 May 2017].
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 15
8 The Constitutional Court’s position on Resolution 1/XI, of 9 November 2016
Resolution 1/XI was declared unconstitutional, null and void by STC 259/2015, of 2 December.26 The rst
point that should be noted about this judgement is the fact that the Court views the new resolution in a different
light to Resolution 5/X, in the sense that it only declared one part of the latter unconstitutional (specically,
the declaration of sovereignty), while in the case of the former the declaration of unconstitutionality has
a general scope, because it considers the whole resolution depends on a single guiding thread that affects
all of it. This fact is important because it makes it easier to link future declarations of intent by the Catalan
Parliament with STC 259/2015.
The second, and more important point, is that the judgement regards the resolution as a “founding act” of
a process for creating an independent Catalan state that claims to be based on a “sovereign quality” that
neither Parliament not the people of Catalonia have. In the Court’s view, Parliament’s self-proclamation as
the holder of sovereignty and expression of a constituent will are manifestations that could have legal effects
outside the Constitution and compares them to a “de facto” route that claims to be unaware of, and expressly
excludes, the regulatory value of the Constitution and, more specically, the principle of the unity of the
State and the sovereignty of the whole of the Spanish people established by SC Articles 1 and 2.
The Court recalls that Resolution 1/XI, unlike Resolution 5/X, seeks to expressly ignore the necessary
condition that the legitimate defence of any political project, even those that are contrary to or incompatible
with the Constitution, is possible within the framework of the Constitution itself, which does not impose
“militancy” or adherence to its postulates (STC 42/2014) but does obligate public powers to respect its
status as the supreme law, in that it only allows projects incompatible with the Constitution to be given effect
and turned into a legal reality if the latter is reformed beforehand. In that sense, the judgement emphasises
the democratic principle that constituted powers may legitimately appeal to can never serve to legitimise
ignorance of constitutional legality, because all legitimacy is precisely based on the actions of public powers
conforming to the Constitution.
The Court therefore considers that in a democratic state based on the rule of law, it is not possible to oppose
democratic legitimacy and constitutional legality, and that the democratic principle cannot be conceived
in isolation, decoupled from the established constitutional order. For this reason, STC 259/2015 concludes
that Resolution 1/XI, as a parliamentary decision, is a constitutional infraction that is not the result of a
misunderstanding of what the Constitution allows or enforces but, rather, of a will that implies an “outright
rejection” of the Constitution’s binding power, which it purports to set at odds with a power that wants to
be the depository of a sovereign quality and constituent dimension which allows it to question the existing
constitutional order.
One could criticise the judgement on the grounds of the constitutional fundamentalism it expresses, rmly
rooted in the principle of legality and not at all respectful towards other principles and basic values, such
as democracy and pluralism (political and national). The Court is being very strict when it considers there
is no legitimacy beyond legality or the democratic principle cannot be separated from the principle of
constitutionality and, therefore, there is no legitimacy of any kind outside legality. It could also be argued
that this perception prioritises the principle of legality and turns the Constitution into a kind of straightjacket
that minimises the democratic principle’s value as a driver for change.
We have already had occasion to refer earlier to the 1998 doctrine of the Supreme Court of Canada which
deduced from some constitutional principles similar to ours both the possibility of a province democratically
expressing its will to go down the road of independence and the duty of the federation to negotiate its
leaving with the province. However, it is also true that the same Supreme Court made it very clear that the
democratic principle does not cover a unilateral declaration of independence. In contrast to this Canadian
scenario, the Spanish Constitutional Court has offered a very restrictive interpretation of the democratic
principle compared to the importance it has given to the principle of legality. Despite invoking the role of
26 In this case, the Constitutional Court once again applies the doctrine established in the challenge to Resolution 5/X, in considering
resolutions that result from discharging the parliamentary duty of driving political and government action have legal effects with
regard to their impact on constitutional matters. On this question, see Parliament’s pleadings in the procedure for challenging
1389/2013 of Resolution 5/X (BOPC No. 97, 10 June 2013).
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 16
politics to resolve these matters and the limits of the law in this case, we have seen above how the Court
has so far stuck to a very rigid doctrine in the sense of not allowing a dialogue and political negotiation
to culminate in holding a popular consultation which could, depending on the result, even be followed by
initiating the constitutional reform processes. Where the issue at stake is a territorial independence process,
it does not seem appropriate nor proportionate to limit the scope for political negotiation to such an extent
that it is impossible to know if there is a social majority in favour, especially when it has been empirically
demonstrated that a large part of Catalan society wants to be asked.27
Faced with this situation, the unilateral route expressed by Resolution 1/XI could be understood as the last
resort, given the lack of a political and legal space for holding or even negotiating a consultation. However,
that does not downplay the importance of the various problems outlined in this section and the previous one
that the unilateral route poses from the perspective of respect for constitutional legality and the democratic
principle as well.
9 The parliamentary actions subsequent to Resolution 1/XI
The conict between the Catalan Parliament and the Constitutional Court has sharpened notably with the
adoption of new parliamentary decisions after Resolution 1/XI, viewed by the Court as actions contrary to
the duty to comply with its resolutions, specically STC 259/2015. Such is the case with Resolution 5/XI, of
20 January 2016, which led to the setting up of the Committee to Study the Constituent Process, Resolution
263/XI, of 27 July 2016, which ratied the study committee’s report and conclusions, and Resolution 306/
XI, of 6 October 2016 (Section I.1.1 and 13 to 16 of Section I.2), following the general political debate.28
Although in strictly legal terms it is difcult to perceive a link or dependent relationship between these
resolutions and Resolution 1/XI, given they are acts of an essentially political and parliamentary nature,
which differentiates this case from the one which could arise between a law and a legal act that rolls it out
or implements it, the Constitutional Court considered this relationship exists with regard to the duty comply
with its resolutions set out in Article 87(1) of the Organic Law of the Constitutional Court (LOTC). The
Court nds justication for that in the will of Parliament to “give continuity and support” to Resolution 1/
XI, declared unconstitutional, null and void by STC 259/2015, and “insist” on going ahead with a political
project to disconnect from the Spanish State outside the constitutional reform procedures. In that sense, the
Court discerns the existence of a time sequence of events in Parliament that demonstrates an intention not to
comply with Constitutional Court rulings.
These pronouncements have been made within the framework of enforcement proceedings relating to STC
259/2015, resolved by the interim rulings 141/2016, of 19 July 2016, 170/2016, of 6 October 2016 and
24/2017, of 14 February 2017. As has already been said, one could object that adopting the procedural
approach of judgement enforcement proceedings is inappropriate in this case because it seems the duty of
compliance has to be predicated on a legal act per se and not acts of an essentially political nature, such as
parliamentary resolutions approved in discharging the duty to drive government action or, even more, in
the internal workings of Parliament itself (for example, setting up a study committee). In these cases it is
obvious that judgement enforcement proceedings involve the risk of limiting Parliament’s decision-making
capacity because, in reality, the duty to comply is transferred to a political project, or an expression of intent
of that kind, and due to its very nature it is doubtful whether that could be considered non-compliance with a
judgement in the sense established by the Organic Law of the Constitutional Court.29 Judgement enforcement
proceedings can be used with regard to laws or acts that implement a law previously annulled and declared
unconstitutional, provided they are acts of a legal character, which ought to be the necessary condition for
27 The last opinion poll conducted by the Opinion Studies Centre (CEO) in March 2017 highlighted that 50.3% of those surveyed
said they were in favour of a referendum (agreed with the Spanish State or not) and another 23.3% support a referendum if it is
authorised by the Spanish Government.
28 Published, respectively, in the BOPC, No. 42, 25 January 2016, and the BOPC, No. 200, 1 August 2016.
29 On this question see sections II and III of the pleadings submitted in the enforcement proceedings relating to Resolution 5/XI,
of 20 January 2016, on setting up parliamentary committees (BOPC No. 69, 29 February 2016).
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 17
determining a situation of non-compliance This legality does not exist in the strict sense in parliamentary
acts to drive government action.
However it should not be forgotten that STC 42/2014 had already awarded legal effects to non-regulatory
parliamentary resolutions and this doctrine has subsequently enabled the Constitutional Court to use judgement
enforcement proceedings in this case too, taking STC 259/2015 as its reference, as a Court ruling that has
been the object of non-compliance with the approval of parliamentary resolutions subsequent to Resolution
1/XI. It is worth saying in any case that the criticism which could be made of judgement enforcement
proceedings in the context we are studying here could be nuanced by the constitutional importance of
the matter. Although that should not be a decisive legal argument, it seems reasonable to think that it has
weighed very heavily in the Constitutional Court’s decision for accepting the very hypothesis of challenging
these kinds of acts in constitutional matters and also for considering them ideal for being judged through
judgement enforcement procedures. Because it is to be supposed that the Court did not want to ignore the
risks that the opposite decision of not accepting control of these parliamentary acts might have caused, in
that they themselves could give an appearance of legality and legitimacy and give implicit recognition of
powers that Parliament does not have. However, the approval of resolutions 5/X, 263/XI and 306/XI, and the
consideration they are contrary to the duty to comply with STC 259/2016, have had two particularly harmful
consequences for the Parliament of Catalonia that it is necessary to comment on.
The rst is that through judgement enforcement proceedings on parliamentary acts considered to be a
continuation or development of Resolution 1/XI, Parliament itself has allowed the Constitutional Court to
impose some exceptional constraints on parliamentary activity that affect a specially protected area, namely
that of Parliament’s internal affairs or operational independence. In that regard it is worth highlighting
the fact that the interlocutory rulings relating to STC 259/2015 have not been restricted to declaring the
parliamentary resolutions null and void, they have also been extended to warning the governing bodies of
the chamber they have a future duty to prevent or stop any “initiative”, legal or substantive, that directly or
indirectly implies ignoring or avoiding the nullity of the resolutions concerned. That also means the right of
parliamentary imitative is affected, if we exclude for this specic case the general doctrine established by the
same Constitutional Court on the strictly formal and procedural criteria that the parliamentary bureaux have
to apply exclusively when deeming whether parliamentary initiatives may be accepted.30
The second particularly negative effect from an institutional point of view is the criminal importance that
enforcement proceedings have given rise to as a consequence of not carrying out the duty to impede or stop
any parliamentary initiatives that might imply ignoring or avoiding STC 259/2015. The warning of possible
responsibility was rst given in the interim ruling 141/2016, of 19 July, and, after various individuals gave
evidence to the Public Prosecutor, this led to actions being brought against the speaker of the Catalan
Parliament (interim ruling 170/2016, of 6 October) and against the speaker and four other members of the
Catalan Parliament Bureau (interim ruling 24/2017, of 14 February). So taking evidence from individuals
has given way to the Public Prosecutor’s Ofce starting criminal proceedings before Catalonia’s Supreme
Court of Justice, which has created an added, counterproductive tension to an already difcult and complex
process which now displays clear and evident features of a grave institutional conict, with the risk it will
also have repercussions in the social arena, depending on future events.
10 Resolution 306/XI: call for a binding referendum on independence
Resolution 1/XI of 9 November 2015 laid the bases for the Catalan independence process in the terms analysed
in Section 7. The basic logic behind this resolution was that the result obtained by the pro-independence
forces in the elections held on 27 September 2015 made it possible to conrm there was a social majority
in favour of independence, translated into a parliamentary majority. In this way those elections and their
plebiscitary character acted as a substitute for the popular consultation that could not be held on the basis
of the declaration of intent expressed in Resolution 5/X, of 23 January 2013, and in the parliamentary acts
adopted after that (in particular Act 10/2014, of 26 September, on Popular Non-Referendum Consultations
30 Among others, STCs 124/1995, 38/1999, 203/2001, 40/2003, 202/2014 and 1/2015.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 18
and Other Forms of Citizen Participation and the call for a consultation in accordance with that Act on 9
November 2014).
For that reason Resolution 1/XI makes no reference to holding a consultation or referendum and opts for
a roadmap in which the process for achieving independence that Parliament initiates will culminate in the
approval of the disconnection laws. It is therefore a roadmap in which the declaration of independence will
depend on acts adopted directly by the Catalan institutions. That is conrmed by the later Resolution 263/
XI, of 27 July 2016, which approved the report and conclusions of the Committee to Study the Constituent
Process, which explicitly states that disconnection from the legality of the Spanish State will be by approval
of the disconnection laws and by a unilateral mechanism for the exercise of democracy that will trigger the
convening of the Constituent Assembly. Although this reference to a “unilateral mechanism for the exercise
of democracy” might raise some doubts as to its nature, everything seems to indicate that in the initial wish
expressed in resolutions 1/XI and 263/XI, the conrmation of the existence of a social majority in favour of
independence is not necessarily conditioned by a holding a referendum or a consultation and that achieving
this new status switches to disconnection laws and, possibly, a unilateral declaration of independence directly
approved by Parliament.
However, Resolution 306/XI, of 6 October 2016,31 introduced an important variable to this initial plan. In
Section I.1.1 of this resolution Parliament afrms Catalonia’s imprescriptible and inalienable right to self-
determination and states once again that the elections held on 27 September 2015 produced a majority in
favour of independence. But then it immediately introduces as a new feature a mandate addressed to the
Catalan Government “to hold a binding referendum on the independence of Catalonia in September 2017 at
the latest with a clear question and a binary [yes/no] answer”. This, however, does not prevent Parliament from
continuing the procedures for drafting the disconnection laws, especially the one that will have to regulate a
succession of regulations on nationality, basic rights, the institutional system, the nancial authority and the
judicial power during the transitory period between the proclamation of the Catalan republic and the new
constitution. Nor does it change the established plan for driving and dening the constituent process dened
in Resolution 263/XI, which Section I.2 of Resolution 306/XI stresses.
It can thus be construed that by means of Resolution 306/XI Parliament has introduced an important change
with regard to the roadmap initially set out by Resolution 1/XI, in the sense that the independence process
itself now depends on holding a binding referendum to nd out the citizens’ opinion on independence and,
although the resolution does not expressly say so, on a favourable result for independence.
An important aspect to consider here is the nature of this referendum from the perspective of the role the
Spanish State and the Generalitat will have to play in it. Resolution 306/XI shows a calculated ambiguity on
this issue that can be seen by comparing sections I.1.1 and I.1.2. Section I.1.132 makes it clear that there is no
need for calling a referendum to be agreed with the State. It refers to a possible agreement with the Spanish
Government but immediately goes on to say that, in the absence of this political agreement, the commitment
to hold a referendum still holds. Section I.1.233, on the other hand, only envisages a scenario where the
referendum is agreed with the State. The different approach to the referendum in Resolution 306/XI had an
important consequence, namely, that Section I.1.2 was not included in the judgement enforcement petition
that the Constitutional Court lodged against Resolution 306/XI for breach of STC 259/2015.
The ambiguity contained in this twin approach to the referendum was after repeated in Act 4/2017, of 28
March, on the Catalan Government’s budget for 2017, because Additional Provision 40 has two sections
that reect the two options envisaged in Resolution 306/XI. As we are talking about a law here, there is an
apparent legal contradiction, in that the Budget Act establishes two different authorisations or mandates to
fund two consultations that are also different, as one depends on an agreement with the Spanish State while
the other in theory does not.
31 Published in the BOPC, No. 237, 18 October 2016.
32 Approved on the initiative and with the support of the parliamentary groups of Junts pel Sí and the Candidatura d’Unitat Popular
- Crida Constituent.
33 Approved on the initiative and with the support of the Catalunya Sí Que es Pot parliamentary group plus the support of the Junts
pel Sí group.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 19
Two essential conclusions can be drawn from the latest parliamentary proceedings in relation to the process
on Catalonia’s political future. The rst is that Parliament has felt it necessary, or at least convenient, to
reinforce the democratic legitimacy of the independence process by holding a referendum (or at least
by making a nal attempt to do so) in order to conrm the existence of a social majority in favour of
independence. There can be no doubt that holding a referendum offers that extra legitimacy which the mere
reference to the election results of 27 September 2015 lacks for the reasons outlined above. However, the
second conclusion is that the independence process does not depend on holding a referendum, because
it does not follow from Section I.1.1 of Resolution 306/XI that it will be an indispensable condition for
culminating the independence process, in line with the political will expressed in Resolution 1/XI, which
it does not appear Resolution 306/XI is purporting to change as far as the roadmap set out by the former is
concerned if it is not possible to hold the referendum.
Thus, the way in which the issue of the referendum is posed in this nal leg of the process seems to indicate
that it is more of a tactical movement, ultimately designed to reinforce the legitimacy of the unilateral route
envisaged in Resolution 1/XI by demonstrating a continued willingness to hold the referendum but, if this is
not held, that will not be for reasons attributable to the Catalan institutions. However, this tactic could have
a problem of credibility given Parliament has already clearly expressed its will, in the nal analysis, to go
down the road of a unilateral disconnection. From the point of view of the conditions required to show a
willingness to begin a process of frank and honest negotiations, the background of resolutions 1/XI and 263/
XI plus the dual content of Resolution 306/XI and Additional Provision 40 of the Budget Act do not appear
to give the willingness to negotiate any special credibility. Nor does it help that, short of a radical change of
doctrine, constitutional case law will certainly not allow any of the referendums referred to in Resolution
306/XI to go ahead.
The recent Constitutional Court Judgement (STC) of 10 May 2017 (Ground 5) on Act 4/2010 of 17 March,
on Popular Consultations via Referendum, expressly recognises the possibility of autonomous region
referendums if these are envisaged by an organic law but, at the same time, it reiterates the doctrine already
known that they can only deal with issues that fall within the remit of autonomous regions and may not raise
issues resolved in the constituent process, which are subject to the decision of the constituent powers. That
means the application of Resolution 306/XI would only have constitutional support in the context envisaged
in Section I.1.2 and provided the question formulated respected both those requirements.34
With regard to calling a unilateral referendum, it is understood that this is legitimised by the democratic
principle and has to be possible as the nal alternative for exercising the right to decide in the political
and social circumstances Catalonia nds itself in, but it cannot be denied that it faces obstacles that are
difcult to overcome. The rst is the legal position that constitutional case law affords the State in defending
constitutional legality. The second concerns the alternatives introduced into the process roadmap which, as we
have outlined, could weaken it in a scenario of breaking away and conict. Lastly, it should not be forgotten
that the determination to go ahead with a referendum in such a hostile context could have consequences as
regards recognising its effects here and abroad, as it seems obvious that it will not be possible to full the
requirements and minimum applicable standards of a participatory procedure of this kind.35
A further decision by the Catalan Parliament also needs to be added to the new scenario regarding the
implementation of the independence roadmap opened up by Resolution 306/XI which does not help to clarify
it. Motion 122/XI, of 18 May 2017,36 on implementing Section I.1.2 of said resolution calls on the Catalan
Government to reiterate to the Spanish Government its willingness to conclude an agreement and politically
34 This referendum would be possible with the prior modication of the Organic Law regulating the different kinds of referendums
held in autonomous regions and formulating the question on the issue indirectly, for example: “Do you agree with Parliament
initiating a process of constitutional reform so Catalonia could become an independent state?”. A question of this type would
not directly contradict the Constitution. It should also be borne in mind that the Catalan Parliament has the power to initiate a
constitutional reform, as STC 42/2014 expressly recalls in relation to the “right to decide” (Ground 4c).
35 On this, see the Code of Good Practice on Referendums drawn up by the European Commission for Democracy through Law
(Venice Commission), Council of Europe, 17 March 2007. See also Section 69 of the Venice Commission Opinion of 13 March 2017
on the Law Amending the Organic Law of the Constitutional Court in 2015, in which the Commission recalls that constitutional
court judgements are binding and, given the Constitution is the supreme statute, they have to be respected by all the political powers.
36 Published in the BOPC, No. 416, 22 May 2017.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 20
agree with it on holding the referendum on the political future of Catalonia. It also calls on the Catalan
Government to set in motion opportune initiatives for obtaining the advice, recognition and endorsement of
the European Commission for Democracy through Law (Venice Commission) as regards the conditions that
the call for this referendum would have to full to meet the requirements set out in the Code of Good Practice
on Referendums.
Parliament’s latest pronouncement raises various doubts in relation to the validity of Resolution 1/XI and
Resolution 306/XI as far as Section I.1.1 is concerned: does it mean that the unilateral route without any need
for a referendum that ows from Resolution 1/XI has nally been abandoned? Does it entail the rejection of
the unilateral referendum envisaged in Section I.1.1 of Resolution 306/XI in favour of the agreed referendum
envisaged in Section I.1.2 of the same resolution? What level of commitment would an eventual decision by
the Venice Commission mean for the independence roadmap?
As outlined above, it cannot be said that Parliament’s conduct in relation to the strategy that needs to be
followed on this important issue has been entirely consistent throughout the course of this legislature, above
all because Resolution 306/XI and the more recent Motion 122/XI do not clearly express a willingness to
modify the postulates previously adopted by Parliament, in particular those that ow from Resolution 1/XI
(as well as Section I.1.1 of Resolution 306/XI). This helps to conrm the idea that the tactical position of
leaving various options open, including a unilateral call for a referendum and/or approving disconnection
laws, has prevailed in this conduct, with all the weaknesses and drawbacks that have already been mentioned.
One point to bear in mind is the Venice Commission’s swift response to the letter which the President of the
Generalitat sent to the President of the Council of Europe on 2 June this year, in compliance with Motion
122/XI. In its reply, the Commission stated it was unable to intervene in this case without the Spanish State’s
agreement and recalled that calls for referendums have to respect the Constitution and legality.37
11 To sum up
The Catalan Parliament’s actions regarding the right to decide and the Catalan independence process
have essentially been characterised by the adoption of parliamentary resolutions that have expressed the
willingness to carry out this political project and the forms of doing so.
These parliamentary declarations have been legitimised by the democratic expression that Parliament
represents with the aim of giving this fact a relevance and effects that have brought it into conict with the
principle of constitutional legality. That has been made clear in the successive challenges brought before the
Constitutional Court since Resolution 5/X, of 23 January 2013, which have given the Court the opportunity to
make a pronouncement on this resolution and those that Parliament has approved during this 11th legislature.
The fact that the independence process has been based on the democratic principle and, at the same time, the
principle of legality has been given less importance, is one of the basic reasons for the constitutional conict
and also one of its main problems because, objectively, it puts the rule of law and the need for political
projects to respect the constitutional rules second. This problem has become particularly serious as a result
of the direction the process has taken since Resolution 1/XI.
Parliament’s actions also mean the strategic lines for driving and culminating the independence process are
somewhat vague and this is particularly evident in the latest resolutions it has adopted (Resolution 306/XI
and Motion 122/XI). The unilateral path of “disconnection” based on the election results of 27 September
2015 (without the need for a prior consultation of the citizens) envisaged by Resolution1/XI, has been
replaced by a new scenario in which this consultation seems to be a decisive element. But this option gives
rise to uncertainties that stem from convening a consultation in the face of opposition from the Spanish State
and constitutional case law that is contrary to a referendum when its purpose is to ask citizens if they are for
or against the independence of Catalonia.
And, despite this determination to hold a referendum and to try to agree that with the State, it cannot be
concluded that the independence process has fully overcome the concurrence of this requirement. Resolution
37 Paragraph updated by the author after the double blind review of the article [editor’s note].
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 21
1/XI and Resolution 306/XI appear to indicate that the Catalan institutions have not renounced, should it
come to this, calling a unilateral referendum and, if that is not possible, to follow an alternative unilateral
channel for culminating the process based on the election results of 27 September 2015.
If it does come to that scenario, it goes without saying it would take the current conict with the Spanish
State and Constitutional Court to a new political and legal level with uncertain results, because it would mean
breaking with the political and social framework the State is founded on. Also, because of the risk implied
by basing the unilateral route on a peculiar interpretation and understanding of the democratic principle and
its relationship with the principle of legality.
Lastly, returning to the roadmap initially designed by Resolution 1/XI, after having considered it necessary
to consult the citizens on such a vital question as independence without having been able to do that, could
have the paradoxical effect of weakening a decision solely based on the election results of 27 September
2015, still only elections to the Catalan Parliament despite the plebiscitary character attributed to them.
BIBLIOGRAPHY
Aguado Renedo, César. “Sobre un eventual referéndum consultivo en el proceso soberanista catalán”.
Cuadernos de Alzate, Issue 46-47 (2013), p. 27-47.
Aguiar De Luque, Luis. “El referéndum en la Constitución española: una reexión sobre una institución
problemática”. Constitución y desarrollo político: estudios de homenaje al profesor Jorge de Esteban.
Valencia: Tirant lo Blanch, 2013, p. 955-972.
Aláez Corral, Benito. “Constitucionalizar la secesión para armonizar la legalidad constitucional y el principio
democrático en estados territorialmente descentralizados como España”. Revista d’Estudis Autonòmics i
Federals, Issue 22 (2015), p. 136-183.
Alonso De Antonio, Ángel Luis. Análisis constitucional de la ley catalana de consultas populares no
referendarias y otras formas de participación ciudadana. Pamplona: Aranzadi Thomson Reuters, 2015.
Álvarez Vélez, María Isabel. “La participación directa de los ciudadanos en la Constitución española y las
consultas populares en el ámbito estatutario”. Revista de Derecho Político Issue 96 (May-August 2016), p.
121-148.
Bar Cendón, Antonio. “El proceso independentista de Cataluña y la doctrina jurisprudencial: una visión
sistemática”. Teoría y Realidad Constitucional, Issue 37 (2016), p. 187-220.
Bayona i Rocamora, Antoni. “El ‘dret a decidir’ i els valors fundacionals de la Unió Europea”. Revista
d’Estudis Autonòmics i Federals, Issue 20 (October 2014), p. 132-173.
Bossacoma i Busquets, Pau. “Competències de la Generalitat de Catalunya sobre regulació i convocatòria de
consultes populars”. Revista d’Estudis Autonòmics i Federals, Issue 15 (April 2012), p. 241-286.
Bossacoma i Busquets, Pau. Justícia i legalitat de la secessió: Una teoria de l’autodeterminació nacional
des de Catalunya. Barcelona: Generalitat de Catalunya, Institut d’Estudis Autonòmics, 2015.
Botella, Cristina. “El Projecte de llei de consultes populars no referendàries: contingut i perspectives”.
Activitat Parlamentària, No. 25 (December 2012), p. 41-57.
Castellà Andreu, Josep M. “La competència en matèria de consultes populars per la via de referèndum a la
Sentència 31/2010 sobre l’Estatut d’autonomia de Catalunya”. Revista Catalana de Dret Públic. Especial
Sentència 31/2010 del Tribunal Constitucional, sobre l’Estatut d’autonomia de Catalunya de 2006 (2010),
p. 306-313.
Castellà Andreu, Josep M. “Consultas populares no referendarias en Cataluña. “Consultas populares no
referendarias en Cataluña, ¿es admisible constitucionalmente un tertium genus entre referéndum e instituciones
de participación ciudadana?”. In: Transparencia, participación ciudadana y administración pública en el siglo
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 22
XXI. Zaragoza: Gobierno de Aragón, Departamento de Hacienda y Administración Pública, 2013, p. 121-
155. (Monographs of the Revista Aragonesa de Administración Pública; XIV)
Castellà Andreu, Josep M. “Democracia, reforma constitucional y referéndum de autodeterminación en
Cataluña”. In: El estado autonómico en la perspectiva del 2020. Madrid: Universidad Rey Juan Carlos,
Instituto de Derecho Público, 2013, p. 172-212.
Ferreres Comella, Víctor. “Cataluña y el derecho a decidir». Teoría y Realidad Constitucional, Issue 37
(2016), p. 461-475.
Gutiérrez Espada, Cesáreo; Bermejo García, Romualdo. “El derecho de libre determinación de los pueblos
no coloniales a la luz del Derecho internacional”. Cuadernos de Alzate, Issue 46-47 (2013), p. 111-126.
Jiménez Sánchez, José J. “Principio democrático y derecho a decidir”. Revista d’Estudis Autonòmics i
Federals, Issue 19 (April 2014), p. 211-233.
Keating, Michael. “Rethinking sovereignty: Independence-lite, devolution-max and national accommodation”.
Revista d’Estudis Autonòmics i Federals, Issue 16 (October 2012), p. 9-29.
Miguel Bárcena, Josu de. “La cuestión de la secesión en la Unión Europea: una visión constitucional”.
Revista de Derecho Político Issue 165 (July-September 2014), p. 211-245.
Montilla Martos, José Antonio. “La vía del artículo 150.2 para la convocatoria del referéndum sobre el futuro
político de Cataluña”. Barcelona: Revista Catalana de Dret Públic [blog], 2014 [Consulted: 8 May 2017].
Muñoz Machado, Santiago. Cataluña y las demás Españas. Barcelona: Crítica, 2014.
Pérez Royo, Javier. “Entre política y derecho: el debate sobre la independencia de Cataluña”. Cuadernos de
Alzate, Issue 46-47 (2013), p. 174-185.
Pons Ràfols, Francesc-Xavier. Cataluña: derecho a decidir y derecho internacional. Madrid: Reus, 2015.
Ridao i Martín, Joan. El derecho a decidir: una salida para Cataluña y España. Barcelona: RBA, 2014.
Ridao i Martín, Joan. “La institución del referéndum en España: una revisión necesaria”. In: Participación
política y derechos sociales en el siglo XXI. Zaragoza: Fundación Manuel Giménez Abad de Estudios
Parlamentarios y del Estado Autonómico, 2014, p. 91-114.
Ridao i Martín, Joan. “La juridicación del derecho a decidir en España: la STC 42/2014 y el derecho a
aspirar a un proceso de cambio político del orden constitucional”. Revista de Derecho Político, Issue 91
(December 2014), p. 91-136.
Ridao i Martín, Joan. “Sobre la ‘Declaració de sobirania i del dret a decidir del poble de Catalunya’ i el seu
exercici per la via d’una consulta popular. Estat de la qüestió». Revista de Catalunya, Issue 285 (2014), p.
49-62.
Tajadura Tejada, Javier. “El ‘derecho a decidir’, el Estado de Derecho y la democracia”. Cuadernos de
Alzate, Issue 46-47 (2013), p. 231-242.
Tajadura Tejada, Javier. “Los procesos secesionistas y el derecho europeo”. Teoría y Realidad Constitucional,
Issue 37 (2016), p. 347-379.
Tajadura Tejada, Javier. “La STC 42/2014, de 25 de marzo, respecto a la Resolución del Parlamento de
Cataluña 5/X, de 23 de enero de 2013, por la que se aprueba la Declaración de soberanía y del derecho a
decidir del pueblo de Cataluña: la introducción del derecho a decidir en el ordenamiento jurídico español”.
In: La última jurisprudencia relativa al Parlamento: seminario celebrado en Vitoria-Gasteiz los días 27 y 28
de enero de 2016. Vitoria-Gasteiz: Eusko Legebiltzarra = Basque Parliament, 2016, p. 57-90.
Tudela Aranda, José. “El derecho a decidir y el principio democrático”. Teoría y Realidad Constitucional,
Issue 37 (2016), p. 477-497.
Antoni Bayona Rocamora
The Political Future of Catalonia: the Role of Parliament
Revista Catalana de Dret Públic, Issue 54, 2017 23
Vintró i Castells, Joan. “La Declaració de sobirania i del dret a decidir del poble de Catalunya: un apunt
jurídic”. Barcelona: Revista Catalana de Dret Públic [blog], 2013 [Consulted: 8 May 2017].
Vintró i Castells, Joan. “Legalidad y consulta soberanista en Cataluña”. Barcelona: Instituto de Derecho
Público [blog], 2012 [Consulted: 8 May 2017].
Vintró i Castells, Joan. “El Tribunal Constitucional y el derecho a decidir de Cataluña: una reexión sobre
la STC de 25 de marzo de 2014”. Barcelona: Revista Catalana de Dret Públic [blog], 2014 [Consulted: 8
May 2017]
Vivancos Comes, Mariano. In: “La declaración de soberanía del Parlamento de Cataluña: entre la política y
el derecho”. Igualdad y democracia: el género como categoría de análisis jurídico: estudios de homenaje a
la profesora Julia Sevilla Merino. València: Corts Valencianes, 2014, p. 759-779.
Viver Pi-sunyer, Carles; Grau Creus, Mireia. “La contribució del Parlament al procés de consolidació i
desenvolupament de l’autogovern de Catalunya i a la defensa de la seva identitat nacional”. Revista d’Estudis
Autonòmics i Federals, Issue 18 (October 2013), p. 88-125.
Viver Pi-sunyer, Carles; Martín i Alonso, Gerard. Informe sobre els procediments legals a través dels quals
els ciutadans i les ciutadanes de Catalunya poden ser consultats sobre el futur polític col·lectiu. Barcelona:
Institut d’Estudis Autonòmics, 2013 [Consulted: 8 May 2017].
