There is a saying “history doesn’t repeat itself, but it rhymes”. The path of every colony towards independence is different. However, the reactions of the UK in 1776 towards the 13 American Colonies and Spain towards Catalonia today bear a strong resemblance faced with their colonies no longer wanting to remain part of an empire which never treated them as equal citizens, thus using increasingly repressive measures to compel their allegiance, or rather subservience.
The first is the increasingly provocative colonial governance through unwarranted intrusions into local democratic institutions. In the case of the 13 colonies, the Declaration of Independence of 1776 enumerated a myriad of violations of the integrity of laws, failure to pass laws of pressing need, hindering and dissolving colonial legislative bodies, the obstruction and misapplication of justice, compromising the integrity of judges, and many other violations of effective self-governance and sovereignty.
For Catalonia, the repressive actions of the Spanish Government and the Constitutional Court are just cause for Catalonia to seek independence. The most destructive recent action was arguably the rewriting of the Estatut d'Autonomia de Catalunya in 2010, thus undermining the will of Catalan people, even denying that the Catalonia is a nation. This is in addition to the numerous denials of Catalan’s right to decide their constitutional future, suspension of duly passed Catalan laws, and innumerable historical denigrations of sovereignty.
Secondly, this is a broader reflection of both the British and Spanish monarchy’s arbitrary constitutionalism, which failed to keep the 13 colonies in the British Empire and will be Spain’s undoing. The doctrine of UK parliamentary supremacy held that only the Crown and Parliament have sovereignty, thus neither the colonies nor the people are sovereign and have no influence over the manner in which they governed. While the Westminster Parliament could grant power to colonial governments, they could also take it away or even abolish them. Also, each of the 13 colonies had a separate and often unequal governing charter, which were often violated regardless of what had been codified. This unequal treatment, compounded by systematic democratic interference and other factors, ultimately led to US independence.
Catalonia has had a more brutal constitutional history, having its governing institutions and charters abolished by the Nueva Planta decrees following September 11, 1714, suspended from 1934-1936, and abolished again in 1939. Even after the restoration of the Generalitat in 1978 after the demise of the fascist Franco regime, the Spanish government has never managed to find an equitable constitutional balance for Catalonia. The status of Catalonia has never been effectively codified or satisfactory. Catalan laws continue to be suspended, devolved powers once agreed upon systematically abrogated, with the Spanish government making up the constitutional order as it goes along, invariably to the detriment of Catalan sovereignty.
With the UK in 1776 and Spain now, these increasingly desperate measures betray the fact that they know they have lost the political argument for continued unity, and for independence. Then and now they depend on threats and constitutionally repressive measures to hold their empire together. No lie can live forever.
Mark McNaught will be a visiting professor at the University of Barcelona Law School from Jan 15-April 15 2016. He will be developing a book/website entitled 'A legal blueprint for an independent Catalan state'. The project will seek to meld the current Catalan constitutional structure with contemporary constitutional innovation to create a model for how an independent Catalan State legal system could be designed.
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