What the Catalan ruling can tell us about democracy

23 mins read

Last Monday 14 October, the Spanish Supreme Court released its much-awaited ruling on the jailed Catalan nationalist leaders. The court has ruled the former Vice President of the local government, Oriol Junqueras, guilty of sedition and misuse of public funds, with a total sentence of thirteen years of prison being passed. Other former ministers and the former Speaker of the Catalan Parliament, Carme Forcadell, have received similar sentences.

In a shocking twist to some observers, two pro-independence activists popularly known as “the Jordis” (Jordi Cuixart and Jordi Sánchez) have also been declared guilty of sedition and received a sentence of nine years each.

The ruling has been controversial, not only in Catalonia, but in the rest of the world too. As such, the responses have been mixed. Many politicians and activists, both home and abroad, have criticised Spain for what has been called a “grotesque” or “anti democratic” response and sending support to the families of the convicts. In the UK, this includes figures like Scottish First Minister Nicola Sturgeon or Labour activist and journalist Owen Jones.

Oddly enough, most legal experts (both in Catalonia, the rest of Spain and abroad) have defended the ruling. Similarly, all official government statements on the judicial decision have supported it too. So, be it the Belgian Government, the European Commission, the US State department or the Barcelona association of lawyers – all these people and organisations seem to agree: the ruling is good.

The main dissenting professional voice is British human rights lawyer Ben Emmerson. Emmerson claims that “The UN Working Group on Arbitrary Detention has already made it quite clear that any prison sentences would be a flagrant violation of Spain’s international law obligations” and that Spain’s actions “pour contempt” on the UN.

It should, however, be noted that Emmerson is the paid lawyer of former Catalan President Carles Puigdemont. On top of that, the report Emmerson mentions is not an official UN report, but one published by a working group of the UN, comprised mainly of Emmerson’s co-workers.

The report was published last May, shortly after the European Court of Human Rights ruled that there had been no human right abuses by the Spanish Government or Judiciary over the jailed Catalan political leaders. The Court went as far as to describe both the Government’s and the Judiciary’s actions as “necessary to preserve democracy and the rule of law”.  On top of that, the report was criticised for mischaracterising Spanish legal procedures and for not a single one of the authors having set foot on Spanish (and therefore Catalan) soil.

But that is enough of other people’s interpretation of the ruling, the real question should be: What did these people do, and should it be a crime?

For this, we should first define what the Spanish legal system calls “sedition”. Despite the connotation that it may have in the English language, the crime of sedition in Spain is defined as a public and turbulent rising to impede either a law from being followed or a public authority from fulfilling its duty.

To see how this accusation usually works we can go to back to the events that transpired in Barcelona in 2011. A group of protesters against the budgetary austerity of the Catalan government of the time (then formed by the same parties and many of the same members as today) impeded members of the Catalan Parliament from entering the building, which forced some to enter by helicopter or in armoured vans.

The Catalan Government then sued the protesters for sedition, arguing that they impeded on normal parliamentary procedures and were trying to stop Parliament from meeting. They won the case and six protesters were trialled and declared guilty for heading an act of sedition.

So yes, despite what the English term might imply, sedition in the Spanish sense is not to want independence or to try to become independent (which are both perfectly legal) but to go against the law in a deliberate attempt to make it crumble. Of course, one could argue that if a law is unfair, then sedition should be understandable and morally correct. So, let’s now look at what happened.

On September 8 2017, the Catalan Parliament passed the “Law of Juridical Transition” which was meant to create a framework for the transition of Catalonia towards a fully independent state. The law established on its first article that Catalonia was a “lawful and democratic Republic”.

The law also claimed that Catalonia was now in the process of funding and creating its own sovereign state and gave vast powers to the President of the Catalan Government to ensure this transition. These powers included the power to appoint judges and the authority to appoint a “Council of the Republic” (with veto powers over the Parliament) who would be in charge of drafting a constitution. The law also established that a referendum would take place on the October 1 (less than a month away) to ratify the Catalan people’s desire for independence.

The law was passed with the votes in favour of 72 members of the Catalan Parliament, the other 71 either voted against it or left the chamber in protest. It should be noted that to change the Statute of Autonomy (Catalonia’s devolution act, akin to a state’s constitution in the U.S) you would need at least two thirds support of the Catalan Parliament. 72 MPs, representing 47% of the popular vote in the last election, deemed their majority of 1 acceptable. As did the Speaker of the House, Carme Forcadell, despite the advice of all parliamentary legal advisors.

We should also note that those 71 other MPs represented 49% of the popular vote. Unionists had their political rights ignored and were treated with complete contempt by a slim parliamentary majority that believed itself “the voice of an oppressed nation”. And this was not the first time. It is no surprise then that Unionist boycotted the subsequent referendum.

Of course, the Spanish Constitutional Court would declare the law illegal just four days after it passed. This did not deter the Catalan Government. In fact, President Puigdemont would go as far as to proudly take a picture and make and “art piece” with the five court summons he received to make his case for the legality of the law. He never attended court.

President Puigdemont boasting about not attending the Court Summons. “Today I have ignored the fifth summon from the Constitutional Court. We will not stop advancing”, says the tweet

The lack of cooperation of the Catalan Government let the Constitutional Court to order a raid on the Catalan Ministry for the Economy, as there was evidence that the polls and materials needed to conduct the illegal referendum were being stored there.

This led “the Jordis” to call for a mass demonstration against what they deemed “a fascist action by a fascist state”. Their power to call for this demonstration came from the fact they each headed the two biggest pro-independence pressure groups in Catalonia: the ANC and Òmnium Cultural. The demonstration was successful, and the judiciary committee in charge of the raid, fearing for their safety, had to flee the building through the rooftop. This would be the event that has led to the Jordis being condemned for sedition, in a very similar situation to that of 2011 in the Catalan Parliament. The actors, however, were very different this time.

Resultado de imagen de 21 s jordis
Jordi Cuixart (back) and Jordi Sánchez (front) addressing the protesters during the night of the 21st of September. Credit: Europa Press

And then came October 1. Hard as the Catalan Government tried, they could not access the electoral registry. The electoral delegation in each of the four Catalan provinces denied them access on the grounds that the law calling for the vote was illegal. And so, it was decided that anyone with a valid ID card would be allowed to cast a vote. In any poll. In as many polls as they wished. Since there was no way to access the registry, there was no way of checking where each person should vote. Similarly, there was no way of determining who should be serving in poll duty, and so they were manned by whomever arrived first in the morning.

At the same time, the Catalan Government created a website where anyone who had a valid I.D number could vote, this time only once. The problem is that they didn’t have any way of mapping names to numbers, so you could input any valid number and any name you wanted and cast a vote. Since the way I.D numbers are created is very precise, it’s relatively easy to check whether a number is fake or not.

However, not having access to the electoral registry, they couldn’t check what numbers were actually “in use”. This led to a situation in which anyone could input any valid number, write any name they wanted and cast a vote. If at the very least ID numbers where hard to come by, this wouldn’t be as flawed of a system, however, there are literal websites that will generate a random, valid number.

To add to this organisational chaos, the police (both local and national) was ordered to intervene and take away the voting booths and polls, for this was an illegal use of public property. And so, episodes of violence erupted all over Catalonia.

I believe most people reading this will be familiar with some of the shocking images of that day, and it is undeniable that a number of police officers overdid it and created unnecessary pain and suffering in an indefensible act of police brutality. In fairness to the full truth however, at least fifty disciplinary proceedings were open after complaints were filled. It was also later revealed that the original figures (around nine hundred people wounded) had been widely exaggerated by the Catalan Government. The Catalan Ministry for Health would later report that only four people required medical attention as a result of the events of the October 1.

The multiple flaws surrounding the referendum mattered little to the Catalan government, who proudly declared victory and believed itself with a clear mandate for independence. A good example showing what this vote was is that the first officially published results for the referendum added up to 100.88%. After all, details didn’t count for much on that night.

Official Twitter announcement of the referendum results at 95% counted. Note how Yes (Sí) + No + No preference (blancs) + Spoiled (Nuls) = 100.88%.

Given the “astounding” wish of the Catalan people for independence, President Puigdemont proclaimed the Catalan Republic to a euphoric crowd in the Plaça Catalunya in Barcelona. Only to cancel it eight seconds later, calling for dialogue with the Spanish Government.

The Spanish Government then applied article 155 of the constitution, which sacked the Catalan Government and put the region under direct control of the central government until fresh elections could be called. These elections would eventually take place a month and a half later, on the December 21. Once again, Unionist parties won in votes by a slim margin, but the nationalists options gained by total number of seats.

Following the events of October, the Supreme Court started a criminal investigation against the nationalist leaders, with them being accused of rebellion, sedition and misuse of public funds. The Court, fearing that they would flee the country and try to evade justice (given their connections and influence it wouldn’t have been hard for them to evade a travel ban) decreed provisional prison for all the accused.

Vice President Junqueras personally went to the police and turned himself in. President Puigdemont got in the boot of a car and didn’t get out of it until he arrived in Belgium, proving the Court’s reservations correct.

Crowd of people cheering, and then puzzled, during President Puigdemont’s declaration. Credit: Iván Alvarado

And so, two years later, we arrive to the recent ruling. The accused have all been acquitted of rebellion, as it has been established that the events were not sufficiently violent to constitute that crime (rebellion is defined as violent sedition).

When reading the ruling, one will find a rather interesting detail: no minimum sentencing has been defined. This means that after 25% of the sentence has been served, the prisoners are eligible to apply for a special regime in which they would “only” have to sleep in Jail and would be free to leave in the morning and during the day. This is to the discretion of the prison officers, who grant it on the grounds of good behaviour. It has already been reported that it will be granted.

Since the accused have already served two years of pre-emptive prison, the Jordis will be able to apply for this as soon as the judicial process is over (there is still a possibility that they appeal the decision to the European Courts). Similarly, the rest of the accused will be eligible for this special status in less than a year and a half.

All in all, the Procés (the way people in Catalonia and the rest of Spain refer to the on-going debate on Catalan independence) is exemplary of a failure in politics. This is not a conflict between “Spain” and “Catalonia”, but a conflict between the more than seven million people who live within Catalonia.

This is not the ailment of an oppressed nation, struggling for freedom from Francoist or Fascist oppression, but yet another episode of how media echo-chambers and social and political separation have led to a divided country.

Increased social and political separation has led to the development of two parallel but yet weirdly complementary realities. Like with Brexit, this has allowed for populist leaders to take power; leaders with little concern for the welfare or representation of anyone who is not on their side. The referendum of the October 1 was the culmination of this unsettling trend.

This court ruling, however, will not breach the gap between the two Catalonias. The biggest party in the Catalan Parliament, the unionists “Ciutadans” has already criticised the decision for being “too lenient”, similarly, pro-independence protesters, in an act of frustration, have been rioting throughout the week, chanting “We will do it again” and “The Streets will always belong to us”. If nothing else, this is further evidence that a political issue like this one will not be solved in the courts.

Perhaps the biggest mistake of the nationalist leaders was to assume that democracy was a game of simple majorities. A system which awards the truth to whoever manages to achieve an electoral victory. As Brexit has showed us, this might be a very flawed conception.

Democracy should be about dialogue, finding a way to live together despite of our differences. A system by which we create rules together, not against one another. Even if nationalists were to be a slim majority (which they don’t appear to be right now) that wouldn’t give them a right to do as they wish. How can you create a new country when 49% of the population is against it?

If coexistence is to return to Catalonia, sanity must be restored first. To restore sanity means to accept that the previous way of doing things was fundamentally flawed. Whether you think the ruling is too harsh or not, it is undeniable that the law was ignored alongside the unionists’ fundamental right to representation; this must be acknowledged by all. Once this is done, we can perhaps talk about pardons.

Current Catalan president, right-wing nationalist Quim Torra, has been reportedly playing with the idea of unilaterally declaring independence again, and only backed down when his Government’s parliamentary allies, the centre-left nationalist ERC, refused to give him support.

Similarly, right and centre-right unionist leaders both in Catalonia and the rest of Spain have called on the Socialist Party-controlled central government to apply article 155 of the constitution and suspend Catalan home-rule once more. Given that the current Catalan Government is yet to break any laws, this would be profoundly unconstitutional and a clear abuse of power. Thankfully, the Socialists have vehemently refused.

These populist ways of acting, on both sides of the debate, are the fuel that keeps the fire burning. Spain will go to the polls on the next November 10 to elect a new Parliament, from which a government should come out.  We can only hope that Spaniards, both in Catalonia and the rest of the country, have the judgement to vote for parties who wish to end, and not perpetuate, the conflict. Democracy cannot again be mistaken with a game of simple majorities.

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