Maria Esther Seijas Villadangos
University of León
There is much interest currently in mechanisms for deliberative democracy, as ways of involving citizens in the resolution of specific political conflicts – something traditional representative democracy has largely failed to do. A number of innovative mechanisms have been developed, such as the Convention on the Constitution, established in Ireland in 2012, and the citizens’ assemblies established in Australia, the Netherlands, Canada (in British Columbia and Ontario) and, recently in Ireland in 2016 (previously debated on this blog). In this post I highlight some aspects of these mechanisms, in order to cautiously draw out suggested minimum criteria for use in the development of a sui generis deliberative model, aimed at addressing territorial conflict in Spain. A more detailed study of these models is available in my recently published book Estrategias participativas para la resolución extrajudicial de conflictos territoriales en los estados compuestos. Estudio comparado (Canadá, Estados Unidos y España) [Participatory strategies for the extrajudicial resolution of territorial disputes in the composite States. Comparative study (Canada, USA and Spain)].
The context in which I consider aspects, of previous deliberative mechanisms, is one of an unquestionable sensibility, in many current democracies, of democratic deficit. This is evidenced in the persistence and severity of political conflicts, particularly territorial conflict. With that context in mind, I will first highlight some strengths and challenges of relevant aspects of the comparative experiences of deliberative mechanisms employed elsewhere, before moving on to draw out suggested minimum criteria for a Spanish model.
Some of the strengths of other deliberative mechanisms lay in a high level of transparency, a balance in the arguments presented and an openness to the public. Including these aspects would be particularly relevant for a deliberative mechanism dealing with territorial conflicts because, despite territorial conflict being rooted in genuine disputes, it is an issue which is often easily politicised. I believe therefore, that a mechanism for deliberation about territorial conflict should ensure politicians are not present during the deliberative process (as was the case in the mechanisms employed in New Brunswick, Ontario and Ireland in 2016).
Another strength, of many previous deliberative mechanisms, is the positive way in which they used new cybersecure-technology to enhance opportunity for, and the experience of, participation. The success lay in the way the technology was employed to strengthen the procedural and deliberative aspects of the various mechanisms, and the way it enabled non-representative, loyalty-free, groups to put forward proposals.
These mechanisms also illustrated that constructive, prior deliberation can improve the success of other participatory processes, such as referenda. Simply holding a referendum, without such prior deliberation, can lead to a radicalization of options, which in turn prevents broader deliberation (the 2016 Brexit referendum is an example). Data that suggest that deliberation is not required prior to participation is data relating to smaller societies in which there is usually less fragmentation and division.
There were however also some challenges experienced with these deliberative mechanisms. Narrow and disjointed agenda, and short time limits, are examples of serious challenges to ensuring the intensity and depth that certain debates would have required.
Another challenge has been the lack of confidence in these deliberative mechanisms, when the effectiveness of the recommendations of citizens’ assemblies is measured by whether the relevant government holds a referendum on the issues raised (as has been the situation with respect to the Bürgerforum and in New Brunswick). The main objection, however, to these mechanisms, and their biggest challenge, relates to their substantive outcomes. The suggested reforms and recommendations tended to show a lack of ambition, fueled by fears about failing to comply with neutrality requirements.
Out of this assessment of experiences with deliberative mechanisms, I turn to discussing the transferability of these participatory strategies. Particularly, transferability for the purpose of dealing with the Spanish situation of territorial conflict, into, what I will refer to as, the Territorial Citizens´ Convention.
Before turning to the transferability discussion however, I provide a brief and limited description of the Spanish territorial situation. This description is aimed at providing some background, rather than an attempt at reflecting the full magnitude of the complexity of what is happening in Spain.
Since 2010, there has been an increase of 17% to 40% support in Catalonia for the option of secession from Spain, as was reflected in the results of the elections held in 2015. There were also earlier indications of this, in November 2014 a non-binding referendum was held in Catalonia to determine how much support there was for the option of secession. While the option appeared, from the results, to enjoy a lot of support, as reflected again in the October 2017 referendum (declared invalid by the Spanish Constitutional Court), the main consequence of both the 2014 and 2017 referenda was an increase in social and political tension. The subsequent application of article 155 of the Constitution (allowing the central government to rule directly, overriding the district government, so called ‘coercive federalism’) and the snap elections of December 2017, are further chapters in this story that emphasizes how endless this "procés" (process) has been.
The resultant effect on Catalan public authorities is significant. Catalonia now has a Parliament that does not legislate, an Executive, with an exiled former head and a current President who takes time out to fast, and who threatens to apply the Slovenian approach to gaining independence, as well as an intimidated judiciary. Apart from this, society is also more fragmented, the previous, relatively peaceful coexistence shattered, and not helped by a fragile economy. Political parties with a non-ideological character have also been displaced by pseudo-cultural associations that leave scant room for compromise, resulting little balance within the political system.
In this context, the question arises: Where is the voice of the rest of the Spanish people in this debate about the future of Catalonia? Pro-secession Catalan leaders have acted as if the rest of Spain has no interest in the territorial debate; this at a time when Spain is celebrating the 40th anniversary of its Constitution, under which there has been a united Spain. We demand an open, tolerant and inclusive Catalonia, because we live in an open, tolerant and inclusive Spain. In my view, the Spanish Constitution, despite some internal asymmetries, offers a more inclusive, tolerant framework for deliberation about the territorial dispute than the alternative mechanisms, advocated for through the Catalan government’s ‘Public Diplomacy Council of Catalonia’ (Diplocat).
The proposed criteria that follow are made in the spirit of constructive pessimism. Pessimism because I have my doubts about how sensible the calls for constitutional conventions really were in the United Kingdom in 2012/13, in Scotland in 2014 and even in Catalonia in 2017. Constructive, because I take the view that deliberation about a constitutional convention, aimed at addressing this territorial dispute, should incorporate certain minimum criteria, if the Territorial Citizens´ Convention is to bear any real fruit.
I therefore propose the following criteria, drawn out the analysis of the successes and challenges of other deliberative mechanisms, for incorporation into the Territorial Citizens´ Convention:
First, the Convention needs to be set up in a way that opens up space in which constructive deliberation and dialogue predominates over confrontational debate.
Second, the Convention needs to be set up consist with the existing regulatory framework.
Third, the Convention needs to be set up in a manner that ensure proposals emanating from the Convention are capable of being given effect within the Spanish constitutional framework.
Fourth, the Convention needs to be a collegiate body with citizen representation that needs to be both broad and randomly designated, in order to enhance legitimacy. Such broad designation requires employing designation criteria aimed at ensuring representation from across territories, generations, sex and gender, and socioeconomic and cultural conditions. Out of that wide sampling of initially selected candidates, a second selection needs to occur, ensuring only the selected candidates that are interested and available ultimately participate in the Convention. At the same time this second stage of the selection process needs to be conducted in a manner that ensures over-representation of any one group is avoided. This multi-stage selection process is crucial for guaranteeing that proposals coming out of the Convention will enjoy widespread support.
Fifth, regarding the ideal time for setting up the Convention, we must avoid setting it up in the moments immediately prior to and immediately following, an election.
Sixth, the Convention must be, and must be seen to be, independent of the both the regional and State Executives, as well as the political parties and their leaders. Nevertheless, its success lies in its subordination to, and complementarity with, existing institutional mechanisms.
Seventh, the agenda for deliberation must combine adherence to a pre-set schedule with some flexibility for members of the Convention regarding the scope of the deliberation. Despite such flexibility, some limitation on the breath of deliberation is needed, to ensure proposed solutions for the territorial conflict are solutions than can be implemented within the existing constitutional framework, and that they will ensure the unity of the State.
Eighth, the process for the formation of proposed solutions must be both thorough and neutral, meaning that proposals must be unaffected by any indoctrination or sectarianism.
Ninth, proposed solutions of the Convention should be precise and concrete, suggesting no more than a dozen actions, in order to avoid risking dispersion and generalization.
A last key lesson that can be draw from the experience of previously used deliberative mechanisms, is that a deliberative instrument needs to ultimately effect some change. To this end, holding a referendum to validate the recommendations resulting from the deliberative mechanism is essential (I would suggest two referenda should be held, within a margin of several years, as occurred in Northern Ireland).
Despite these suggestions however, the process should not result in constitutional mutation, meaning that it should not simply be a channel for reform of the Spanish Constitution, regardless of what is prescribed in it. Its value is the deliberative process. In that context, I propose the above criteria should be the main features of any proposal for a sui generis strategy for a deliberative resolution of territorial conflicts, in 21st century Spain.
Maria Esther Seijas Villadangos is Professor of Constitutional Law at the University of León (Spain)
Suggested Citation: Maria Esther Seijas Villadangos, ‘Citizens as drivers of change: lessons from citizens’ assemblies for a Spanish and Catalan context’ IACL-AIDC Blog (21 January 2019) https://blog-iacl-aidc.org/2019-posts/2019/1/21/citizens-as-drivers-of-change-lessons-from-citizens-assemblies-for-a-spanish-and-catalan-context