Still not a Dictatorship: Spanish Law and Judiciary in Times of Constitutional Crisis
I write these lines after Carles Puigdemont, the deposed Catalan President, and part of his Government have fled to Brussels to evade Spanish justice, after eight ex-Consellers of the Government have been sent to pre-trial detention without bail, and after the appeal from the incarcerated presidents of two civil pro-independence associations ANC and Omnium to be released on conditional parole after 18 days of detention has been rejected. The scenario is terrible, also for those of us that believe that the only possible solution for this crisis is by political negotiation, and it could have been avoided. That being said – the assertion that Spain has turned into a repressive state or even a dictatorship is utterly groundless.
Our legal system considers pre-trial detention as an exceptional measure that can only be decreed during the investigation if a number of conditions are met. It must be kept in mind that it affects at least two fundamental rights of the Constitution: first, personal freedom, one of the pillars of the Rule of Law; and second, the presumption of innocence, which means that nobody is guilty until a due trial proves him or her responsible for one or more punishable conducts. Pre-trial detention means, on the risk of stating the obvious, depriving an innocent from his liberty.
I concur that the investigating judge was wrong in deciding that there was basis for some criminal offense and that there exist the conditions required to imprison a number of people investigated but still considered innocent. Nevertheless, this judge acts in a judicial framework in which mechanisms exist to revert her decisions. In fact, those provisionally deprived of their liberty can, until the oral proceedings, request as many times as they see fit to be released. I do not intend to play down at all the fact that they are imprisoned. But we must put the situation in context.
It is true that the judiciary is not showing its best side at the moment: the acting prosecutor has been reprimanded by the Parliament for his complacency towards a number of Partido Popular politicians under investigation, and there are relevant doubts about whether the Spanish Supreme Court, the Audiencia Nacional, is competent to adjudicate that issue, among others.
Nevertheless, those now investigated have potentially committed a number of criminal offenses, some of them quite severe precisely due to their institutional positions: they were the Government. And no, they are not being judged for organizing a referendum, for wanting that the people could vote; they are being prosecuted because, even though they knew the possible juridical consequences, they decided to ignore the legal order not once, but several times (some would say continuously). They are not being repressed for defending some ideas – they are not political prisoners –, but because they have tried to defend their ideas against the law. A law that had been approved by both the Spanish and Catalan Parliaments, which had been democratically elected. Are these acts criminal offenses? It is not for me to answer that question. What is clear is that they are illegal as these government members have admitted themselves. Supporting the passing of the referendum and transitory laws –remember now the counsels of the Parlament who warned that they were illegal – and making them effective, even in rather ingenious ways. It shouldn’t be forgotten that Puigdemont and his Consellers departed almost clandestinely to Brussels precisely because they knew that they would be pursued.
All this happens in Spain, which is as much a state under the Rule of Law as any other surrounding state. No matter how insistently some parties keep repeating it nowadays, we are not in a dictatorship, not even close. We are in a state with imperfections that defends itself, sometimes clumsily, against what it considers an attack against its very functioning. And it does so by applying the existing rules through a justice system that, by and large (in particular with respect to the budget), works. All this doesn’t preclude insisting on that this is a conflict with a political base, with legal consequences, but that will only be resolved if it is approached from dialogue and understanding of the legitimate positions of the other. In any case and as a basic condition, all must respect the same rules of the game. And that includes not twisting the political parties law or trying to convert the next elections into something they are not.
To declare the independentist parties illegal would be in breach of our Constitution. Our supreme norm does not require political parties to defend its values: it entitles parties to defend their own ideas and goals with peaceful and democratic means.
The original version of this article was published in Spanish on ElPeriodico.com.
The Spanish government has justified its actions on grounds of upholding or restoring the constitutional order. The Union has declared that this is an internal matter for Spain. Issues of national sovereignty are indeed a matter of domestic politics in liberal democracies. However, the manner in which the Spanish authorities have been handling the claims to independence expressed by a significant part of the population of Catalonia constitutes a violation of the Rule of Law, namely:
1/ The Spanish Constitutional Tribunal banned the referendum on Catalan independence scheduled for 1 October, as well as the Catalan Parliament session scheduled for 9 October, on grounds that these planned actions violate Article 2 of the Spanish Constitution stipulating the indissoluble unity of the Spanish nation, thus rendering secession illegal. However, in enforcing in this way Article 2, the Tribunal has violated Constitutional provisions on freedom of peaceful assembly and of speech – the two principles which are embodied by referendums and parliamentary deliberations irrespective of their subject matter. Without interfering in Spanish constitutional disputes or in Spain’s penal code, we note that it is a travesty of justice to enforce one constitutional provision by violating fundamental rights. Thus, the Tribunal’s judgments and the Spanish government’s actions for which these judgments provided a legal basis violate both the spirit and letter of the Rule of Law.
https://www.opendemocracy.net/can-europe-make-it/barbara-spinelli-et-al/upholding-rule-of-law-in-european-union
What if the origin of all this mess is a sentence of the Spanish constitutional court contrary to European and international law, with regard to the right of self-determination?
@Spanish unconstitutional court?
Nice try by the scholars. But if there’s anything beyond doubt in this mess then it’s the legitimity of the Constitutional Court’s annulment of the referendum law on grounds of law-making powers. By way of comparison: This ruling is no different from the one by Germany’s Federal Constitutional Court in 1958 (https://dejure.org/1958,56), stating that the federated states cannot call their populations to vote on federal matters. Even if one held that a different reading of the Constitution and thus a different ruling was possible it’s preposterous to claim that the decision reached is a violation of rule of law.
Another question, however, is the actual handling of events when in spite of the ruling the referendum was held nonetheless. The enforcement was not within the scope of the ruling but was in the hand of a local judge and, especially, the executive branch.
Also, I find the level of legal expertise in this open letter quite astounding: Even if there was a breach of certain basic rights such as freedom of peaceful assembly and of speech this wouldn’t make the matter one of rule of law. Rule of law is a different beast.
@OG – nice try of selected reporting. You mention the German constitutional court, but what about the decision of the Canadian Supreme Court?
Also, what if a German state holds an independence referendum? I guess the Federal Government would call it void. But does anyone believes they’d send in the federal police?
“have fled to Brussels”
Who are you kidding?
On this same blog many knowledgeable lawyers have questioned the integrity and independence of Spain’s Constitutional Tribunal.
It was absolutely imperative to get another national judiciary involved and to highlight the shortcomings of Spain’s legal system as much as possible. This has been done very effectively so far.
The Spanish government has been engaging in “lawfare” against Catalonia since 2006. This needs international attention and discussion.
To understand what happens in Spain.You have to go to the transition and write of the Spanish constitution.
The moderate catalan party was at the table with liberals, conservatives, socialdemocrats and communists. it was not moderate basque party. In that constitution was made the idea of the autonomies, a middle way of the federalism.
The basques in order to be satisfied they received the best autonomy, nearly as an independent country, very well satisfied.
The catalans instead received a middle way between basque one and the rest regions.
Many think that basques were the real problem but was in other words the minor problem. Why? ETA provocked the isolation of his own party in basque issues during decades.
In catalonia, the separatists were inside catalan issues and governing. The moderate catalans took into account that catalan autonomy was not enough for them and decided to deal in madrid to make improvements until the Socialdemocrats allied with separatists catalan arrived to the power. Left-Separatists catalan government made incredible waste of money provocking a big debt even negotiate a reform of autonomy, a very dangerous reforms in some parts of the texts.
In madrid, the socialdemocrats received the text and they take into account that was too much so they decided to modify in order to be approved. The Conservatives sent the text to the constitutional court because they thaught that was unconstitutional. After the modified text of the socialdemocrats only 4% of the articles were decided to be unconstitutional. the Catalan separatists were angry while the moderate catalan party dissapointed.
After, the catalan moderate return to the power and ask more autonomy in finances to the Conservatives. The negotiation ended badly for the moderates and provocked a tension in his own party. Divided and accused by corruption decided for change their total agenda. Form being only autonomists to separatist, losing 1/3 of Popular support.