Miguel Candel ||
Professor of History of
Philosophy, University of Barcelona, and Co-spokesperson of Izquierda en
Positivo ||
The electronic review mientras tanto published recently, in nº 175 (Enero 2019), an article by José
Luis Gordillo under the title “Sobre el juicio al procés
(II)”. In this piece, a strong criticism of the
Catalan sovereignty procés is
included; however, there are as well arguments against the provisional criminal
definition and particulars by the public prosecutors of the activities carried
out by the leaders of the procés who
are now defendants in this case (rebellion, according to the public prosecutors
in the Supreme Court; sedition, according to the Attorney General). Leaving
aside the provisional criminal definition and particulars of those activities
as sedition (refuted as well by the author of the article), I will restrict
myself, first, to the quotation of these arguments, and to refute briefly
afterwards those arguments which the author puts forward specifically against
the prosecution for rebellion:
[imagen
del Tribunal Supremo incluida en el artículo?]
“It is absolutely true that there is not much
jurisprudence on the crime of rebellion because over the last forty years, very
luckily for all of us, very few rebellions have occurred and/or very few
reports for this type of crime have been filed. The case everyone might bear in
mind, the 23-F, was tried in a court of first instance within the military jurisdiction
and then in the Supreme Court, but always according to the definition of the
crime of rebellion as included in the Criminal Code of 1973, where the use of
violence was not required.
The scarce corpus of jurisprudence available
apparently doesn’t subscribe to the thesis of the public prosecutors and Vox. The
authors of the manifesto “La
banalización de los delitos de rebelión y sedición” (a text
undersigned by almost one hundred of Spanish professors of several law
disciplines which can be accessed, among other outlets, in the review Sin Permiso) quote a sentence from the
Constitutional Court, STC 199/1987, which states that “the rebellion is carried
out by anyone group with the purpose of using illegitimately war weapons and
explosives in order to bring about the destruction or eversion of the
constitutional order”. Additionally, in a judicial decree from the National High
Court (Audiencia Nacional) of Dec., the 21st. 2015, issued as closure
of a criminal case against the town councillors of a Catalan town council who
made a public communication of support to the Declaration of the Catalan
Parliament about the starting of the independence process, it was established
that for an uprising to be qualified as violent it should be accompanied by
“the application of physical force; or, when the implementation thereof, if
necessary for the achievement of anyone of the purposes included in the text of
the Criminal Code, would present a serious and probable threat because the
authors would be determined to obtain them at all cost, including resorting to
the use of violent means if needed”. This interpretation was reiterated later
on by the Higher Court of Justice of Catalonia.
Apparently nothing of the sort happened in
Catalonia during the autumn of 2017. In fact, things were so far away from it
that Carles Puigdemont even took the decision, frustrated afterwards thanks to
the accusations of treason, of calling a snap regional election, seeking to find
a slightly decent political solution to the mess created by all of them through
their “unilateralist” actions and their dishonest and outrageous verbosity. As
we all already know, Puigdemont in the end chose to bring forward a declaration
of independence to be described, just to be generous and agreeable, as
“symbolic”, or as buffoonery and stupidity if seriousness and accuracy is to
prevail.
For a declaration of independence to be as far
away as possible from pure buffoonery, it must be accompanied, at least, by the
mobilisation of forces trying to fix the borders of the territory to be
declared independent as well as to throw out the armed forces and the police of
the state from which the secession is taking place. Before anything else,
independence is a situation where facts are much more important than words. It
is, above all, a factual situation. Therefore, from its very beginnings, this
is the reason why states and wars have always had such a close relationship.
Josep Fontana explained this in a very pedagogical manner by pointing to the
fact that anyone willing in earnest the independence would have to be ready to
face a war of independence. A war which, in the case of Catalonia, should be
waged as well against domestic and foreign enemies; among them, and according
to the votes cast in the last regional elections of Dec., 21st.
2018, the majority of Catalan people should be included. Hence the
irresponsible and even criminal character of the declarations from the not a
bit honourable Quim Torra about the Slovenian way to independence, that is,
about a violent route to secession”.
In my opinion, the trap in this type of arguments is always the same: you
start from the classical “image” of rebellion as an uprising of forces trying
to destroy, by means of actual physical violence or the threat to use it, the
legal order in place. To that assumption it will be implicitly added another
one as important, or even more: those forces act “from outside” the
institutions they seek to overthrow (this being the unavoidable reason of
resorting to physical violence). Since in this particular case of Catalonia
this didn’t happen at all because the “golpistas”[1] – let’s call them
participants in a coup d’état, in the Kelsenian sense – held a very important
part (decisive in the case of Catalonia) of the whole institutional system to
be overthrown, from the above premises the undersigned jurists endorsed by
Gordillo conclude: no rebellion, no secession, nothing at all; at most,
misappropriation, as in the sentence from the Schleswig-Holstein court.
Common sense practitioners (I do not include the majority of the secession
supporters as users of this ability) couldn’t but be astonished at such a well
versed conclusion; that is, that a minimum of seven years of tenacious
conspiracy in search of a breakup of constitutional order, with absolutely
express declarations in that sense at least ever since 2013, could be
considered in the end as nothing different from a stupidity (or even a poker
game) hardly punishable for no reason except a handful of public money
misappropriated.
No doubt common sense practitioners also perceive or suspect, without
needing to tread into the juridical realm, that those who will be sitting in
the dock (and those who cowardly fled the country to avoid the same dock) were
in no need whatsoever of resorting to physical force to overthrow the
established legal order precisely because
they were the representatives of that order in Catalonia, thus being able to
blow it up from the inside. If they fell short of getting it effectively,
this was due to their wager being from the very start a bluff, as described by the
indescribable Mrs. Ponsati, a huge bluff indeed, but one whereby they really did pursue “winning the game”
(independence). In fact, this is all about with the bluffs in any game.
In short, it all was about maintaining a never ending verbal challenge from
the Catalan government and Parliament, together with actions in the streets not
without a sort of violence of low intensity which would ask for a
disproportionate response from the central administration, as, for example, a
repetition of the police charges on the 1st. of October; this would
foster a diplomatic intervention from abroad. Should they be able to achieve
only that intervention, a precedent and a situation would be brought forward
which would bestow them with a minimal international recognition enough to
brand themselves as entitled to a sovereignty not subjected to the Spanish one.
That was one of the two possible outcomes expected. The other, indeed, was
a frightening of the central government, scared by the perspective of a
confrontation not only among civilians but also between the autonomic and
national police forces, with the probability of casualties, which would force
the hesitant Rajoy to some kind of transaction legitimizing the coup d’état, at
least partially.
Not one of both outcomes came about, not for lack of willpower but due to
miscalculations about their own and the other side’s strengths, Concerning the
fact (strangely, not included in the list of exculpatory circumstances in the
Manifesto) that the declaration of independence was suspended only seconds
after its proclamation and then bizarrely camouflaged as parliamentary
commitment (or as who knows what), it is to be remembered that the decisive
breakup of the constitutional order did not happen in anyone of those occasions
nor with the pseudo-referendum of Oct. the 1st., but during the
previous parliamentary sessions of 6, 7 and 8 of Sept., 2017, when the so
called “Law of legal and foundational transience to the republic” was passed
without any kind of suspension, cancellation or denial from those political
forces who approved it; and now almost everybody seems to have forgotten about
it.
In other words, ladies and gentlemen, what Puchi (Puigdemont) made was not
a Putsch. No rebellion, no sedition, no coup d’état, nor anything remotely of
the kind. Come on, it was simply, as Carme Forcadell put it, something like a
“performance” to the delight of
pro-secession Catalans enragés
and the ignominy of bad-tasted and old-fashioned Spaniards. Indeed, all this
because there was no “violence” grasped as use of weapons and assault of public
buildings.
However, could it be that there is no massive breaking of the constitutional
order in the decision by a part of the state (Generalitat and Parlament
in this case) to declare, for an important portion of the territory, the
establishment of a new legal order absolutely incompatible and openly conflicting
with the one in vigour, after a very painstaking (although with plenty of sloppy
loose ends) process of preparation of “state structures” and laws on the
fringes of the Constitution? And could it be that this process was not a
massive act of violence developed with no
need of even one shotgun since by that time the public buildings were already
occupied and the armed forces (17.000 mossos) were under the control of the
promoters of the breakup?
Could it be that the passing of the so called “Enabling Law” of 1933 in
Germany which did confer an absolute power to Hitler wouldn’t be considered
universally as a coup d’état in spite of the fact that it marked the end of any
trace of the rule of law and democracy and was carried out as well without one
shotgun?
And it is also quite clear that there is no jurisprudence at all: it is the
very first time for such an event to come about since the current Constitution
of 1978 became effective. And so what? For what purposes do we have the
jurisprudence criterion proper, the one not written, the one to be part of the
human capacity to think analogically (which is, by the way, the very foundation
for every kind of rational thinking, from the first pre-Socratic philosophers
onwards)?
I posit that the statement of charges against the leaders of the procés would require less than half a
page of arguments in order to reach the same conclusions as the public
prosecutors in the Supreme Court, if Spain were governed by the common law, as in the UK, where there is
no need for a written code to give you chapter and verse about all possible
crimes.
[1]Indeed, this is what Hans Kelsen has to say: “A revolution in the
broader sense of the word (that includes a coup d'état) is every not legitimate
change of this constitution or its replacement by another constitution. From
the point of view of legal science, it is irrelevant whether this change of the
legal situation has been brought about by the application of force against the
legitimate government or by the members of that government themselves, whether
by a mass movement of the population or by a small group of individuals.
Decisive is only that the valid constitution has been changed or replaced in a
manner not prescribed by the constitution valid until then.”
https://www.cronicapopular.es/author/marcos/
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