Can Europe Make It?

Catalonia: political prisoners or an extrajudicial elite?

It is difficult to see why actions taken by the government in Madrid ought to be regarded as a curb on dissent, and not as a preservation of the country’s constitutional order.

David Jimenez Torres
6 December 2017

Regional strike against the prison detention of the ousted Catalonian Government,November 8, 2017. NurPhoto/ Press Association. All rights reserved.On December 7, Catalan nationalists are expected to demonstrate in Brussels under the slogan ‘Wake up, Europe. Help Catalonia’. The protest is a new push to focus international attention on Catalonia ahead of regional elections on December 21, and which follow months of tense struggle between the regional and national governments.

Over the coming weeks, Catalan nationalist leaders will continue to frame the Catalan conflict along two lines of argument. The first is that Catalans are a unified ‘people’ fighting against an authoritarian ‘state’ (presumably one with no ‘people’ behind it). The second is that they have merely operated at a ‘soft’ level of expressing beliefs and identity, whereas the national government headed by Mariano Rajoy has responded on a ‘hard’ plane with police action and incarceration of political leaders. 

To study the playbook pursued by the Catalan movement is of value to any European or world citizen with concern or interest at the dimensions of contemporary ethno-nationalist populism. This is because neither of the arguments mentioned above stands up to rational scrutiny. Nationalist leaders have not simply been expressing dissent or putting forward political solutions; they have taken unilateral actions which affect the rights of all Catalans – and, indeed, all Spaniards – without having a mandate to do so. One might argue, in fact, that it is nationalist leaders who have turned a state (in the form of the powerful devolved administration) against its people. What is at stake in the Catalan crisis, then, is not a nineteenth century struggle for national liberation, but rather the very contemporary question of whether élites are answerable to the rule of law.

State versus people

In 2015, Catalan premier Artur Mas called for regional elections. He did so after a couple of years in which he had reversed his deep unpopularity – the result of government cuts and corruption scandals affecting his party – by blaming Catalonia’s woes on the Spanish government, and by arguing that, if the region did not receive substantial concessions, it should vote on independence from Spain. Mr. Mas also harked back to the presumed grievance inflicted on Catalonia in 2010, when the Spanish constitutional court struck down some provisions in Catalonia’s regional charter. This grievance, it is worth pointing out, had not prevented Mr. Mas from voting in 2012 alongside Mr. Rajoy’s party in order to impose sweeping austerity measures in Catalonia.

The national government explained to Mr. Mas that an independence referendum was impossible: the current constitution, which received the support of 91% of Catalan voters in 1978, does not allow for this type of referendum to be held at a regional level; and a constitutional change would require building broad, cross-party support at the national level. Yet Mr. Mas pushed ahead, claiming that the new regional elections would be a plebiscite on independence.

The results of these elections-turned-plebiscite were clear: 52% of Catalans voted for anti-independence parties. A seriously flawed electoral law, which grants overrepresentation to rural areas, allowed pro-independence parties to achieve a majority of seats in the regional assembly, but it is nevertheless hard to imagine that anyone would have interpreted these results as a mandate for secession.

That, however, was exactly what the nationalist parties did, and the powerful resources of the devolved administration were soon mobilised towards the organization of a referendum on independence. This course of action was despite numerous warnings from the courts that no regional government had the authority to call for such a referendum, and that the new Catalan administration - now headed by Carles Puigdemont - was taking on powers which it did not constitutionally have.

On 6 and 7 September 2017, pro-independence parties passed laws in the regional parliament which would allow for both a referendum on secession and a ‘national transition’ towards independence. This was accomplished by circumventing the procedures of the chamber and by overruling the parliamentary rights of the non-nationalist minority (which, it must be stressed again, represented the majority of Catalan voters).

If this is alarming for anyone who believes that respect for agreed-upon procedures is an integral part of the democratic process, it was nevertheless in keeping with the ethno-nationalist outlook of Catalan separatists, who have form in disregarding non-nationalists as mere ‘foreigners’ or -worse- ‘traitors’. Indeed, the president of the regional assembly who presided over these fraught proceedings, Carme Forcadell, once explicitly excluded supporters of non-nationalist parties from her definition of the ‘Catalan people’.

The measures passed in early September abolished the framework of the same regional constitution which the nationalists had claimed to value so dearly. Their leaders legitimized these moves, as they have often in the past, with the argument that while there is no majority support for independence, there is large support for a referendum on the issue. This is true, yet the more pressing question is how many Catalans were in support of the path of unilateral secession (via referendum) that nationalist leaders had embarked on? The more pressing question is how many Catalans were in support of the path of unilateral secession (via referendum) that nationalist leaders had embarked on?

When viewed this way, the drop-off in support is stark. International audiences whose attention was understandably captured by the images of police action during the referendum of October 1 may be surprised to know that: this was a referendum that the ‘No’ camp did not recognize as valid – and thus did not participate in; that journalists showed that it was possible for one person to cast multiple ballots on the day; and that the results have yet to be verified by any independent, international authority. Even in this context, and according to the regional government’s own – and questionable – figures, only 38% of the Catalan census would have voted for independence. In a poll published a couple of weeks later, only 29% of Catalans favoured declaring secession from Spain on the basis of that vote.

Nevertheless, and once again, nationalist leaders pushed ahead and proclaimed independence on October 27. The effects that this has had on the welfare of their citizens (2900 companies have fled Catalonia since early October, and Catalan society is the most polarized it has ever been) seem to be of no concern to them.

In contrast to all this, the actions of the national government have achieved broad support across the Spanish political spectrum. Mr. Rajoy’s decision to activate Article 155 of the national constitution, which allows the national government to step in if any of the country’s regions are flouting the constitutional order, was agreed to with the Spanish Socialist Party and the centre-right party Ciudadanos (which, incidentally, is led by a Catalan, Albert Rivera). The decision to sack the regional government and call for new elections were thus not the result of some shadowy authoritarianism, as nationalist leaders would have it, but rather the work of a cross-party front which represents nearly 70% of votes cast in the national elections of June 2016. For many groups and voters who are otherwise actively opposed to Mr. Rajoy, what is most at stake in this crisis is whether a regional elite can hijack that region’s institutions.

This in particular is an issue that often gets lost in foreign coverage of the Catalan crisis, but without which it is impossible to understand its recent developments. For many groups and voters who are otherwise actively opposed to Mr. Rajoy, what is most at stake in this crisis is whether a regional elite can hijack that region’s institutions and push an agenda for which it does not have majority support, in open defiance of the democratically-sanctioned rule of law; all in the name of diffuse national essences. As someone who has voted against Mr. Rajoy in two general elections (and will likely continue to do so), I consider myself among the many Spaniards for whom the constitutional issues involved in the Catalan crisis go well beyond the question of which party happens to be in power.

Political prisoners or politicians in jail?

Following the ineffectiveness of the declaration of independence, Catalan nationalism has reorganized itself under a new rallying cry: one which calls for the liberation of ‘political prisoners’.

These would be both the leaders of nationalist associations Jordi Cuixart and Jordi Sànchez, and the members of the sacked regional administration, all of whom have been placed in preventative prison pending their upcoming trials. The charges against Cuixart and Sánchez are for directing a crowd against a police unit that was carrying out an investigation, while the government ministers are charged with sedition and misuse of public funds in the lead-up to the declaration of independence.

It is telling that, in recent weeks, a number of activists who were jailed during the Franco dictatorship have come forward saying that the label ‘political prisoners’ does not apply to Catalan nationalist leaders. Their arguments are simple: it is not the same to rebel against a dictatorship as it is against a democracy and its democratically-sanctioned constitution. They might also point to the fact that the current Spanish judiciary can hardly be considered a puppet of the national government. This became particularly clear a few months ago, when Mr. Rajoy was called upon to testify in an ongoing trial over his party’s finances. The judicial system has, in fact, already sent a number of previously high-ranking officials in Mr. Rajoy’s party to prison over corruption charges.

Indeed, the claim that nationalist leaders currently under investigation should be considered to be political prisoners is not merely disingenuous; it should be offensive to activists, journalists and opposition leaders in authoritarian countries, and to anyone who cares about their struggles. This is because nationalist leaders are not being prosecuted for expressing dissent. On any day of the week one will find an abundant supply of Catalan nationalists putting forward their views both in regional and in national media, and rightly facing no consequences for it. Yet the nationalist leaders’ declaration of independence was not the expression of dissent, but a top-down push to alter the constitutional order and the entire structure of citizens’ rights in Spain. The declaration would have made non-separatist Catalans foreigners in their own land, despite their being in the majority of the population. The only reason why this did not happen was because of the national government’s decision to intervene. The declaration would have made non-separatist Catalans foreigners in their own land, despite their being in the majority of the population.

Rather than operating on the level of discourse, then, Catalan nationalist leaders have acted on the much harder stuff of citizens’ rights. In doing this, they have called into question at least one of the pillars of any mature democracy: the limits that the rule of law may place upon the actions of politicians. Meanwhile it is difficult to see why actions taken by the government in Madrid ought to be regarded as a curb on dissent, and not as a preservation of the country’s constitutional order against a threat that has professed itself at-ease with measures that are unilateral, and extrajudicial.

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