Twelve former Catalan politicians and activists are currently facing trial before the Spanish Supreme Court for charges ranging from misuse of public funds to disobedience and rebellion. The prosecutions are a consequence of their involvements in the acts leading to the so-called ‘unilateral declaration of independence’, issued by the Catalan Parliament in September and October 2017 and which triggered the biggest constitutional crisis Spain has witnessed since its democratic transition.
The Catalan Regional Government (Generalitat) in 2017, sought to subvert Spain’s constitutional order. despite the Constitutional Court’s constant warnings, rulings and prohibitory injunctions, and relying on the alleged legitimacy it had been awarded by the supposed ‘will of the Catalan people’. This Cabinet passed laws which sought to suspend the operation of the Spanish constitution in Catalonia, with the hope that leading to a situation of de facto independence would force the Spanish state to recognize its formal independence.
In doing so, an attack was launched against the most fundamental provisions of the Spanish constitution: Articles 1(1), 1(2) and 2, which hold that Spain is a country “subject to the rule of law”, the foundations of which lie on the country’s “indissoluble unity” and on a “national sovereignty” belonging to “the Spanish people” as a whole. Contrary to what is claimed by individuals such as Thursday’s speaker, this is no constitutional anomaly or the sign of a totalitarian state.France, Italy, Germany, Norway, Switzerland and Brazil all contain similar provisions, as does the USA in Texas v White (1869) 410 US 179, where it was held that that the United States federation was “indissoluble” and “perpetual”. As recently as 2016, the German Constitutional Court struck down a secessionist referendum in Bavaria, arguing that the sovereignty of the German state rested on the German people as a whole, not on individual Länder.
These acts of open breach of the Spanish Constitution led to the application by the Spanish Central government of Article 155 which involves the suspension of the regional autonomy and the dismissal of the Cabinet at the time,. The implementation of the Article 155 was authorized by the Senate. Once again, this is not unique to the Spanish constitution: it is based on the concept of Bundeszwang (Article 37 of the German Constitution), and similar provisions can be found in the constitutions of Austria (Art 100), Italy (Art 126) or Argentina (Art 75).
Following her escape from the country of the former President, Carles Puigdemont and several of his "ministers" , a European Arrest Warrant was issued against them by the the Spanish Audiencia Nacional (Court of Appeal) although later withdrawn . Since then they have been touring Europe, lecturing on the biased Spanish judiciary, the oppressive nature of the Spanish state (as the title of Thursday’s talk implies) and the fact the country allegedly has political prisoners.
Spain, is a member of the European Union and of the Council of Europe and a country with what is often considered one of Europe’s most progressive constitutions, does not have political prisoners. Similarly, the Supreme Court’s trial of the secessionist leaders will be no ‘show trial’, but one which, like every other trial which takes place in the country, will be conducted under the extensive procedural guarantees provided by both the Spanish Constitution and by the European Convention of Human Rights.
It is deeply regrettable, that many outside Spain have fallen into the secessionist narrative which attempts to portray Spain as an oppressive state and the Spanish judiciary as a biased one. There is no democratic mandate beyond that established by a country’s constitution, which lays the framework of a society’s rights and legal obligations. It is not permissible, in any democratic regime, to deliberately violate (and call for the violation of) the constitution, under the false pretence of operating under an alternative legal order.
There are even Law faculties around Europe who are hosting talks with some of these leaders currently fugitives from justice.? Would for example any university in Europe host someone who is avoiding a European Arrest Warrant issued by the UK, after explicitly vowing to disobey the Constitution and declare the independence of one of its constituent nations? Would it allowed a talk which sought to project the image of the UK being a “fascist state” with a biased judiciary as has been the case in some well renowned universities sucha as Cambridge? It is highly doubtful.
By hosting these talks these centers of knowledge are contributing to the narrative of the members of the former Catalan government being martyrs. They are not: they are politicians who, in full knowledge of their actions, intentionally acted ultra vires in respect of their own Statute of Autonomy. It is contributing to the notion that it is permissible to, in the name of das Volk, disavow a country’s constitution. More importantly, perhaps, it is allowing its premises and its brand to be used to attack the judiciary of an EU Member State and to undermine the very notion of the Rule of Law and the Rechstaat.
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