The Catalan crisis is the Spanish crisis. It is the European crisis. It is the return of the face of authoritarianism within the heart of Europe. It is more than just a shame that short-sighted political interests, such as maintaining Mr Juncker in office or promoting a right-leaning Spanish European Finance Minister mired in allegations of wrongdoing, take precedence over speaking up for the founding principles of the European Union. Betrayal of the ideals of Monnet and Adenauer places the entire European project at risk, and in far graver a way than the 2016 British vote to leave.
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By Matthew Parish
One principal axiom of the modern European political order is that people should be free to pursue peaceful political activity without fear of violence or harm by the state. This precept was advanced by the architects of the European Economic Community, Jean Monnet and Konrad Adenauer. After two devastating world wars initiated in Europe, the notion of politics as a peaceful pursuit unencumbered by risk of state violence became central to a new European vision of political order. Centuries of contested European borders, cultures, nations and conflict would be forsaken. There was to be a true European revolution in ideas.
The perennial problems of conflict between nations and peoples had plagued the European continent at least as far back as 1337. This year represented the start of the Hundred Years’ War. The traditional solutions to such European conflicts had been military. Uncountable millions had died by the sword over the centuries. The Treaty of Rome, establishing the European Economic Community in 1957, was intended to be different. It was the product of idealism. By creating a free market in trade and ideas across nations, and in entrenching liberal democratic principles across Europe, the prospect of state violence in pursuit of political goals was to be permanently suppressed. In its place, a culture of human rights and political freedom would flourish.
Catalonia’s attempt to declare independence in October 2017 was fortified by a controversial referendum. This represented the first time in the relatively short history of the European Union that one of Europe’s many sovereignty disputes had reached the stage of a declaration of independence within the EU’s boundaries. Recent events in Catalonia are unique because they have been peaceful on the part of the secessionists. Whereas in Northern Ireland and the Basque region of Spain separatist movements employed periodic violence, the Catalan independence movement utilised democratic and nonviolent means. Whatever one thinks of the wisdom of Catalan independence from Spain, the fact that exclusively peaceable methods have been employed in its pursuit must be applauded.
This raises two questions. The first is why the Spanish state sought initially to use force to prevent the Catalan independence referendum on 1 October 2017. Then Spain used criminal law in pursuit of political goals, including incarceration of democratically elected politicians, in response to the declaration of independence on 27 October 2017. The second question is why European Union institutions have been so quiet, barely criticising the Spanish government for acting in grave contradiction with the European ideal of peaceful resolution of political disputes. Why then is the President of the European Commission, Jean-Claude Juncker, so outspoken an advocate of Madrid’s infallibility?
Perhaps idealistic to a fault, the Catalans imagined that the institutions of the European Union would intervene to mediate in the current Spanish constitutional crisis. Brussels would surely implore the Spanish state to negotiate a solution to the Catalan conundrum, rather than use coercion. The Catalans have been wrong until now. The EU projects itself as a set of institutions premised upon principles, including upholding democracy and human rights. Nevertheless the Union has become sclerotic since the idealistic era of its forbearers Monnet and Adenauer. Now it persists as a bureaucracy subject to rawer political power relations. The EU’s current senior officials hold office at the sufferance of coalitions of national governments.
The most senior politicians in the European Union traverse the interests of swing members of European political coalitions at their peril. With France leaning left and Germany leaning right, the British now mostly irrelevant, the Italians in chaos and Poland self-absorbed, the Spanish government is the most important such swing member in both the European Parliament and the European Council. This problem is compounded by the fact that the European Union is relatively deaf to the voices of its citizens, because its senior officials are not subject to meaningful suffrage. In Brussels, this is known as the democratic deficit.
Juncker declared unconditional opposition to Catalan independence on the basis that if new states were allowed to emerge within the European Union then, in his words, we would have 98 member states rather than 28. His mathematics is hard to follow. Even by the most generous arithmetic, there are nowhere near 70 secessionist movements within the EU. He was making it up. Juncker has been silent about Spanish police brutality to prevent voting. He has been silent about incarceration of Catalonian politicians without trial (or even charge) for inchoate political crimes such as sedition and rebellion where no acts of violence or even incitement have been alleged.
Juncker attended the University of Salamanca, a government institution publicly funded by Madrid, to receive an honorary doctorate on 2 November 2017. This took place in the midst of the Catalan crisis. It was a curious time to receive a degree. The honour was bestowed upon Juncker just as the Spanish courts were imprisoning peaceful Catalan politicians without charge. Spanish Prime Minister Mariano Rajoy attended Juncker’s ceremony, taking time out from the crisis to travel to Salamanca and congratulate his friend.
Juncker was the first elected President of the European Commission, chosen by the European Parliament in May 2014 with a bare plurality of the votes (29%). The support of Rajoy’s Partido Popular in the European Parliament, one of the largest members of the European People’s Party centre-right parliamentary caucus, was essential to secure Juncker’s election. Juncker moved to his new post having been the President of Eurogroup. This organisation is secretive and few people know that it exists, still less what it does. Eurogroup is an informal but powerful meeting of the Eurozone’s finance ministers, responsible for imposing fiscal discipline upon errant Eurozone members.
A prime candidate for such sanctions should be Spain, with its huge public debt. As President of Eurogoup, Juncker blocked penalties against Spain. Rajoy’s government returned the favour, emerging as a key supporter of Juncker in the European Parliament for his new position as President of the European Commission. The Greeks were not so lucky at the hands of Eurogroup, but they have far fewer seats in the European Parliament and only a quarter of the MEP’s who are members of the EPP caucus compared to Spain’s Partido Popular.
Juncker’s successor as the head of Eurogroup was the sometime Labour Dutch Finance Minister Jeroen Dijsselbloem. It appears that Dijsselbloem decided to stand for a second term as President of Eurogroup in 2015 principally to oppose (and defeat) Luis de Guindos, the Spanish Minister of Economy. De Guindos is Rajoy’s close ally, and was the preferred candidate of Juncker and Merkel. Now De Guindos is being touted by the right-leaning Brussels coalition as the first European Finance Minister, a post whose responsibilities will approximate to those of the President of Eurogroup but with a greater degree of authority. Rajoy is a key ally of Juncker, Merkel and the centre-right group in EU politics.
This may explain why Brussels has been so muted in its criticisms of Madrid’s police brutality and judicial overreach. The right-leaning bureaucracy currently in power in Brussels relies upon Rajoy’s support for its tenuous grip on power. Juncker’s principal opponent for election as President of the European Commission was Martin Schulz. Schulz is a German Social Democrat and Merkel’s principal domestic political opponent. Rajoy is in large part responsible for keeping both Juncker and Merkel in office, by keeping Schulz out of office. Without Rajoy’s support for Juncker, the President of the European Commission would have been the left-leaning Schulz. The entire composition and ideology of the European Commission would likely now be dramatically different. Moreover Schulz might have used his position as President of the European Commission to fight the German federal elections in September 2017 in which Merkel ultimately beat Schulz by a solid margin.
Despite being the EU’s intimate ally in matters of politics and finance, Rajoy and De Guindos have unenviable reputations. The Bárcenas affair is a notorious Spanish political corruption scandal uncovered in 2013. It involved revelation of a series of parallel accounts for the Partido Popular by the party’s sometime treasurer. These accounts showed details of alleged cash payments to politicians, including some €250,000 to Rajoy. It was linked to the Gürtel scandal. This is an even worse network of Spanish corruption accusations involving the grant of bogus public works contracts to fund the Partido Popular. The common theme in both scandals is Prime Minister Rajoy’s Partido Popular.
The Gürtel affair has been estimated as involving theft of some €120 million from the Spanish taxpayer. Although the scandal was exposed in 2009, to date nobody has been convicted of anything. De Guindos himself was implicated in a cronyism scandal when he tried to appoint José Manuel Soria, a Partido Popular Minister of Industry under Rajoy, as Executive Director of the World Bank shortly after Soria was forced to resign due to exposure of his business activities. These business activities were run through offshore entities simultaneously with Soria holding incompatible ministerial appointment. Again nobody has been convicted.
The internationally admired Spanish investigative Judge Baltasar Garzón was investigating the Gürtel scandal. While doing so he was suspended twice, consecutively and for different strange reasons. One of the reasons was that he was being over-zealous in investigating wrongdoing on the part of Partido Popular officials holding office during the Franco dictatorship. Garzón’s suspensions, hugely controversial, excluded one of the few Spanish Judges known for his independence, from Spain’s largest ever corruption case.
While Spain’s judiciary asserts its political independence from government, European institutions themselves harbour vocal doubts. The Council of Europe is the leading international oversight body for European human rights with representation from all European countries. It Is responsible for operation of the European Court of Human Rights in Strasbourg. The Council has reported grave concerns about political impartiality within the Spanish legal system. The central allegation reported about the Spanish judiciary is domination of the Spanish legal system by the Partido Popular.
Rajoy, leader of the Partido Popular, is determined to suppress the Catalan regional autonomy movement using legal tools. Despite compelling evidence having emerged of Rajoy’s corruption amidst the documents revealed in the Bárcenas affair, Rajoy remains not just at liberty but continuing to occupy the most powerful political office in the land. By contrast Catalan politicians languish in prison, removed from office by Rajoy’s decree (sanctioned by the Spanish Senate, itself dominated by the Partido Popular). It is hard to understand how these contrasting events are consistent with the Spanish government’s assertions that its courts are independent and the rule of law is upheld in Madrid.
The list of legal abuses perpetuated by the Spanish state against the Catalan autonomy movement is legion. On 28 October 2017 Prime Minister Rajoy dismissed the entire Catalan government and all of its elected MP’s, including those who played no part in the independence movement. This is undemocratic. It does not matter what purported legal or political basis there is for such an act. Removing elected politicians en masse for pursuing the agenda they were elected to pursue is grossly improper in modern Europe.
Soon thereafter, the Madrid Prosecutor opened an investigation into the medieval crime of sedition. This in itself is concerning. In the United Kingdom, the Sedition Act 1661 criminalised describing the King as a “heretic or Papist” or “declaring that the Long Parliament [a Republican Assembly] had not been dissolved”. The crime of sedition was an instrument for repressing controversial political speech in the aftermath of the English Civil War. The legislation prescribed a penalty of death. In the United States various statutes have prescribed crimes of sedition for publishing “false, scandalous or malicious writing” about the President or the US Congress, or for “spreading false news of the American army or navy”.
The criminal code of the German Democratic Republic enshrined the crime of Volksverhetzung, seditious incitement of the masses against the state. This provision of the criminal code was used by the feared East German State Security Service (the Staatssicherheitsdienst, colloquially known as the Stasi) to arrest and detain people indefinitely without charge in obscure prisons where they were often held for years without trial.
Sedition is a crime of voicing opposition to the political status quo. It is an embarrassment and a scandal that any country in modern Europe is entertaining a prosecution upon this basis. The European Union prides itself upon having overcome communist tyranny and replacing communism’s cruelties with liberal democratic values. Now the EU, at its highest level, finds itself acquiescing in the use of equivalent methods by the Spanish state.
The Madrid Prosecutor summoned the dismissed Catalan government ministers for interrogation in the course of this unusual investigation. Those ministers unfortunate enough to attend the court hearing were not asked questions of substance. Instead they were all summarily sent to prison. The complaint is not merely that they were detained without trial and conviction. Rather they were incarcerated without charge. They have not been accused of anything. There is no publicly presented evidence of anything they have done wrong. They were ordered to be held in prison pending an investigation. This investigation might continue indefinitely and might never come to a conclusion, as with the Gürtel affair. Catalan politicians are convicted of nothing, accused of nothing, with no publicly presented evidence against them. They are now locked up indefinitely. They have done nothing violent. Nobody has suggested they are corrupt. They have been imprisoned for pursuing a peaceful political agenda that they were elected to pursue.
Madrid replies that democracy must proceed within the law. But this statement elides one statement that is obviously true with another that is obviously false. The obvious truth is that without stable rule of law, democracy cannot function. The police cannot use violence and the power of arrest against people exercising peaceful democratic mandates. The state cannot use its power, unchecked by laws on freedom of speech, to take over public broadcasting channels, as Madrid has done in Catalonia. This hinders free expression of political opinions. Democracy becomes a sham. The democracy of Spain becomes the democracy of Zimbabwe.
The falsehood inherent in Madrid’s position is to suggest that the state is entitled to use the instruments of law – police, the courts and prisons – against people wishing to express their democratic political views. It is wrong to suggest that unjust and cruel laws can properly be used to force democrats into silence, lest they be arrested and imprisoned. In the words of Mahatma Gandhi, “an unjust law is itself a species of violence. Arrest for its breach is more so”. Gandhi continues to observe that “the law of nonviolence says that violence should be resisted not by counter-violence but by nonviolence”. So it is with the Catalan cause. It does not matter whether or not one supports the goal of Catalan independence. One should support the rights of Catalan people to pursue different causes peacefully, without being subject to state violence. This is a cornerstone of European civilisation.
European law places primacy upon freedom of speech, exercise of democratic rights and self-determination of peoples. European law overrides Spanish domestic and constitutional law. This is a legal truism. That is why Spain’s appeal to domestic constitutional law, as a justification for the legal measures it is taking to suppress the Catalan independence movement, is unpersuasive. Constitutions are mutable documents, that must develop over time as a compromise between different peoples and different interests within a single legal jurisdiction. They must find room for the expression of peaceful democratic will. Given the want of legal space shown by the Spanish state to Catalan aspirations for political, economic and cultural autonomy, it is a testament to the Catalan autonomy movement that it has remained peaceful in the face of government violence. Let us pray that this continues.
The legal fictions engaged in by the Spanish state to suppress Catalan regional politics are implausible even by Spanish domestic standards. Nothing in the Spanish constitution forbids the people of a region from holding a referendum upon a constitutional issue. Nothing in Spanish law says that the Police are authorised to use violence to stop people from voting. The Police only properly wield authority to enforce criminal law. Their legitimate powers do not extend to seizing ballot boxes or attacking voters. That is because operating a ballot box, or voting, is not a crime. There is nothing in Spanish law that says otherwise. In societies based upon the rule of law, the role of the Police is not to enforce constitutional principles that may be subject to a variety of interpretations. It is to prevent crime. Nobody in the Catalan autonomy movement has been committing crimes by colourable contemporary European standards. Sedition is not a crime. It is legal fiction, a tool of state repression long abolished by civilised nations.
European politicians are bound as a matter of fidelity to the founding principles of the European Union, to support the supremacy of European law and a liberal democratic political order in all EU member states. Permitting people to vote, and to participate in democratic political activity, is part of European law. This overrides improper Spanish criminal offences such as sedition.
It is more than just a shame that short-sighted political interests, such as maintaining Mr Juncker in office or promoting a right-leaning Spanish European Finance Minister mired in allegations of wrongdoing, take precedence over speaking up for the founding principles of the European Union. Betrayal of the ideals of Monnet and Adenauer places the entire European project at risk, and in far graver a way than the 2016 British vote to leave. The departure of the United Kingdom, if it happens, is mostly an economic problem. It disrupts the free trade upon which the citizens of the Union depend for their livelihoods.
Spain must not revert to legal tyranny of a kind periodically found within the darkest corners of Europe before the architects of the European project constructed the Treaty of Rome. It it does, then the principal ideological pillar of the European Union, as a confederation of nations based upon rule of law and respect for common human rights, is swept away. If Spain can do this, then so can any other member state. The moral authority of the European Union in promoting common legal standards is undermined, and the Union will thereafter surely collapse.
We the peoples of Europe must speak up against the legal improprieties taking place at the behest of the Spanish state in Catalonia. The word fascism is often over-used to describe disagreeable authoritarian governments, and virtually no modern government now willingly describes themselves in such terms. But this is a case in which the word would not properly be misused. Joseph de Maistre, the intellectual progenitor of the ideology, in 1819 published an influential tract which developed the notion that a legal system should be used to develop authoritarian control over a population so that nationalist sentiments could be propagated and opposition towards them suppressed.
Mussolini associated his political movement with the fascio littorio, a bundle of rods tied around an axe that represented the legal authority of the Italian magistrate to impose order through the use of law as an instrument of repression. The use of imprisonment and police violence against peaceful democratic politicians, and the employment of historically barbaric criminal offences designed to persecute peaceful voices against official government policy, are some of the axiomatic components of historical fascist philosophy. Now they are tools used by the Euro zone’s fourth largest economy against Catalan politicians.
This is unfortunate given Spain’s recent history. Spain was perhaps the only country in Europe in which the fascist movement was not decisively defeated. Instead it just gradually faded away, as its sole leader Francisco Franco died in office. His heirs realised that a movement based upon such a philosophy could not continue to exist in the modern Europe that had emerged since the end of the Second World War. Franco had applied to join the European Economic Community in 1962, but every single member voted against it. West Germany and France were particularly adamant in their refusal to permit a state with fascist political traits join the European community of liberal democratic nations. After gradual reforms after Franco’s death, Spain was eventually permitted entry in 1986. Spain was perceived as developing in the right direction towards liberal democracy, despite its failed fascist coups d’état in 1981 and 1982.
The apparent gradual demise of fascism in Spain concealed a fundamental rift in Spanish politics. This is between authoritarianism and republicanism, and it remains to this day. In this respect, Catalonia has always been firmly on the republican side. That is why Franco’s regime suppressed the Catalan autonomy movement so ferociously. The first Prime Minister of post-Franco’s Spain was also the founder of the Partido Popular. As Rajoy’s predecessor and formerly Franco’s Interior Minister, he was responsible for state repression under Spain’s fascist rule. This is why the Partido Popular has remained unpopular in Catalonia. And that is why Rajoy presumably feels, at least as a matter of Spanish domestic politics, that he can use the force of the state to suppress Catalan political aspirations. He has few Catalan votes to lose.
The Catalan crisis is the Spanish crisis. It is the European crisis. It is the return of the face of authoritarianism within the heart of Europe. It is a threat to the ideals and institutions of Europe that were developed after the end of the Second World War. Its causes are surely related to the economic malaise that has infected Europe since 2008 and that has hurt Spain particularly badly. But in difficult times, common European values are more important than ever. Europe must not return to the dark era of the 1930’s. If the Spanish crisis is not grasped definitively by the institutions of the European Union, then there is a real risk that the worst of Europe’s historical political traditions might return to the continent. This will surely endanger the best of Europe’s current political traditions.
Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He is a scholar of ethnic conflict and civil war, and he has published two books and over two hundred articles. He is an Honorary Professor of Civil Law and Litigation at the University of Leicester and a Young Global Leader of the World Economic Forum. Bilan magazine named him as one of the three hundred most influential people in Switzerland. www.matthewparish.com
The views expressed in this article do not necessarily reflect the views of TransConflict.