Throughout the ongoing struggle between Spain and Catalonia secessionists have systematically stated their case in terms of democratic legitimacy, as opposed to the language of legality on which the unionist side bases its position. According to unionist side “constitutionalists”, democracy requires staying within the law, the Spanish Constitution is the ultimate source of legality, from which all else derives, and the Constitutional Court is the ultimate arbiter. Conversely, for the independence movement laws need to be interpreted, and if necessary amended, to allow for majority-based decision-making. If this does not happen, there are legitimate grounds for pushing the boundaries of the law, at least in terms of their interpretation by the Constitutional Court, which is considered excessively restrictive. In purely legal terms, however, one does not need a degree in law to understand that the Spanish courts have actually pushed legal boundaries much further than the independentists, twisting interpretations of the law into impossible contortions in order to meet political objectives.
The Catalan independence movement, while aware that its ultimate goal was unconstitutional, has at all times been careful to advance towards its stated objectives while remaining in practice within the Law: peaceful protests and efforts to organise referendums, which have also been downgraded to non-binding consultations in order to comply with Constitutional Court rulings. The latter, taking as its starting point article 2 of the Constitution, which states that Spain is an indissoluble unity, places a referendum on self-determination in Catalonia outside the law (even if willed by an overwhelming majority of Catalans). Even if technically there is no law making such a referendum illegal and the constitution doesn’t explicitly ban it, one might excuse the Constitutional Court for wanting to avoid a binding referendum leading to a legal impasse if it resulted in a popular mandate contrary to the constitution. But how far can this logic be pushed? The Catalan law providing cover for the non-binding consultation organised by the Catalan government in 2014 was also overturned by the Constitutional Court, and former president of Catalonia Artur Mas and his former ministers are at present being held personally liable for the financial cost of the consultation, which according to the court trying the case constitutes “misappropriation”.
It is within this context, and one of a strong mandate arising from the 2015 elections, in which pro-independence parties obtained 47.7% of the vote, that the Catalan government decided to go forward with a fully-fledged referendum whose result it would consider binding. Obviously the Constitutional Court was quick to suspend the Catalan Referendum Act as well as the Legal Transition Act adopted by the Catalan Parliament last September to provide legal cover for the 1st of October referendum. That suspension, coupled with the Catalan government’s commitment to follow through with the referendum, triggered a judicial and police crackdown which in its first stage included shutting down websites, raiding printing presses and indicting 700 mayors.
On 20 September the Guardia Civil raided and searched a number of Catalan government ministries. Among them was the key Ministry for the Economy, run by Vice President Junqueras, whose team had been organizing the referendum. As 14 senior officials were taken into custody a crowd gathered in front of the ministry in central Barcelona, outraged by such a direct action by the Spanish police against Catalan institutions. That day’s events constitute the basis for the charges of “sedition” (up to 15 years in prison) brought against pro-independence civil society leaders Sánchez and Cuixart. They also provided the Madrid media and the government with the long-sought image that would allow them to construe the independence movement as prone to “violent” behavior: the two Guardia Civil vehicles, littered, windscreens smashed, and covered with stickers was played on an endless loop by the media. The same day Minister Méndez de Vigo made an appearance speaking on behalf of the Spanish government in which he described events using repeatedly the term “tumultuario”, a word of as rarely used in Spanish as “tumultuary” is in English, but which does appear in the criminal code in the definition of sedition.
All journalistic accounts, including all footage of Cuixart and Sánchez on the day, agree on the following facts: 1. The Guardia Civil vehicles were left in front of the ministry, empty, unlocked and containing arms inside. 2. The Catalan police were not warned in advance of an intervention by the Guardia Civil in central Barcelona which would by its very nature draw a spontaneous protest. 3. The protest lasted many hours, beginning in the morning of the 20th and extending well past midnight and the Guardia Civil vehicles could not be moved without endangering public safety because of the number of protesters peacefully blocking the road, but the Catalan police did provide an evacuation route for the Guardia Civil along the footpath. 4. The Guardia Civil authorized Sánchez and Cuixart to stand on the vehicles to address the crowd and ask them to go home at the end of the day. 5. There are no images or reports of violence against anybody, nor has anybody seen footage or images of the vehicles being attacked.
On 16 October Sánchez and Cuixart were put in pre-trial custody in Madrid by the Audiencia Nacional. Also questioned in relation with the same events was Superintendent of the Catalan police, Josep Lluís Trapero, who was released, but also faces trial for sedition. The second round of imprisonments came following the ousting of the Catalan government as Spain imposed direct rule on Catalonia. One batch of supreme court summonses affected the speaker of the parliament, Carmen Forcadell, and other members of the parliament bureau, all of whom were set free on bail but face charges of sedition, rebellion, disobedience and misappropriation as a result of having allowed parliamentary votes on the Catalan Referendum Act and the Legal Transition Act, as well as a vote on the declaration of independence held on 27 October. The second and more important batch of summonses affected the Catalan cabinet as such. The strategy its members adopted, in view of the preventive jailing of Sánchez and Cuixart was to split: Puigdemont and four of his ministers travelled to Brussels ahead of their questioning in Madrid, while Vice-President Junqueras and seven ministers went to Madrid for questioning at the Audiencia Nacional on the 2nd of November, where they were immediately remanded in custody. They all face charges of rebellion, sedition, prevarication, disobedience and misappropriation. One month later, the case having been transferred to the supreme court, six of them were released from pre-trial custody in Madrid prisons. As for Puigdemont and his ministers in Brussels, a European arrest warrant was issued by the Audiencia Nacional, but withdrawn after a few weeks to the surprise of the Belgian courts, in all likelihood in order to avoid the Spanish justice system being publicly rebuked by the Belgian courts. Puigdemont and his ministers will, however, be arrested if they set foot on Spanish soil.
Esquerra Republicana de Catalunya (ERC), the party lead by deposed Vice-President, Oriol Junqueras, recently obtained 21.4% of the vote in the 21 December Catalan elections called by the Spanish government following suspension of self-rule. Junqueras and former Interior Minister Joaquim Forn have by now been in prison in Madrid for well over two months. They remain detained on the grounds that they could repeat their offences if released. When ruling on a first appeal for their release from pre-trial custody, Supreme Court judge Llarena rejected their plea on the grounds that if released there was a risk of a “violent explosion”. Ruling on a second appeal by Junqueras on 5 January the Supreme Court argued that although there was no evidence of the accused being directly involved in any kind of violence -a specific requirement for the crime of rebellion to hold-, there was a risk of him repeating behaviour which could foreseeably lead to violence. The court’s reasoning is that by promoting an illegal referendum and declaration of independence the defendant was creating circumstances which could lead to violence, even if there had been no violence, and even if such “violence” as had occurred was that carried out by the police against the peaceful resistance of voters. According to the Supreme Court’s reasoning those seeking to push for independence through non-violent resistance to the state are in effect carrying out acts of violence, and therefore the definition of violence and rebellion could extend to encompass literally millions of Catalans, if such reasoning is to be consistent. Following espionage and searches in the Catalan government ministries, Spanish police reports which the supreme court is using as a basis for its decisions are rapidly expanding the notion of violence and rebellion to include the million-strong peaceful rallies held by the independence movement since 2012 as well as protests involving people banging pots and pans on their balconies (caceroladas). The Spanish Supreme Court is turning what are in effect peaceful protests and non-violent resistance to authority on political grounds into the most serious crime in the criminal code: rebellion, which carries penalties superior to those for murder and rape. The Spanish police and state prosecutor have at present taken the line that there was a conspiracy to achieve the ilegal goal of independence, and that reaching such a goal would necessarily entail violence, hence rebellion -even though so far there has been non violence-. The case that is being developed at the moment makes the entire leadership of the independence movement the Supreme Court’s target, and new summonses are being issued. In the newly elected Catalan parliament, 19 of the pro-independence MPs already face such charges, and in all likelihood there will be more to come.
Beyond this high profile political level, there has been a flurry of questionings and indictments affecting school teachers who have allowed debate in class in relation to the 1 October events as well as online activists who have been critical of police brutality. In both these cases the offence they are accused of is “hate crimes”. Once again the law is twisted by the Spanish judiciary, in such instances by taking legislation theoretically intended to prevent discriminatory conduct against minorities and redeploying it to suppress dissent and democratic debate.
As the Spanish government rejects with a sneer the use of the term political prisoner (effectively banning it on Catalan TV which it now controls), Junqueras, Forn, Cuixart and Sánchez, none of whom have engaged in any behaviour which imperilled the state’s monopoly of force or involved the slightest violence, remain in prison before the actual investigation phase of their trial has begun, lest they should repeat such action as they did not carry out in the first place (!!). Following the Spanish Civil War the Francoist Regime carried out a massive judicial witch-hunt against the losing side, the Spanish Republic, and those who had defended it. It received the name Causa General which could translate as General Case. The Catalan independence movement may be said to be now facing a new Causa General. Ultimately, if the Supreme Court it to follow through consistently with the rationale it is using for keeping Junqueras, Forn, Cuixart and Sánchez in prison, all those who took part in massive demonstrations for independence and in the referendum itself, -over 2 million people- should also be charged with rebellion. Given that the only violence so far where people have actually been hurt has been carried out by the Spanish police, by using the potential existence of future violence as a reason for keeping Junqueras and the others in prison, the Supreme Court is in a sense punishing Junqueras for the Spanish police beating voters on the 1st of October.
Liberal polities must allow their citizens free thought and expression, and to pursue democratically such goals as they deem worthy. But what is a state to do when such pursuits run against the unity of the state as enshrined in its constitution? There are basically two ways a liberal state can deal with such a clash between the two (presumably) cherished principles of freedom and unity. One is to adapt legislation to permit a democratic decision on secession. In so doing the state will run the risk of sacrificing unity to freedom, but will also weaken the cause of those seeking independence, as being denied self-determination will no longer be part of their list of grievances. A second option entails the state proposing solutions to accommodate within it those wishing to depart. Ultimately obtaining the consent of the latter by making concessions of one sort or the other is the only way a liberal democracy can come to terms with such challenges. In the Spanish case nothing of the sort is envisaged and therefore the contradiction that is implied by the unlawfulness of a goal and the lawfulness of its pursuit comes to the fore, staring the state and all observers blatantly in the eye. No concessions will mean, as is so far the case in the Catalonian conflict, that the state renounces its claims to being an advanced democracy which rules by consent. Spain has chosen to rule by coercion only, trampling the fundamental rights of it citizens in the process. Ultimately the line separating secession in fact from its pursuit as a legitimate political objective becomes blurred, as those seeking the objective by peaceful democratic means are outlawed and persecuted.