Thursday, January 17, 2019

Prejudices about the trial against the procés by Miguel Candel



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.”


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