“The Rule of Law Such As Ours” (And as Imposed in Catalonia)

Photo by thierry ehrmann | CC BY 2.0

The Spanish prime minister, Mariano Rajoy, referring to the “illegal” Catalan referendum on independence slated to take place on October 1, opined, “This illegal plan of rupture has no place in a democratic state under the rule of law such as ours.” Not famous for intellectual agility, Mr Rajoy has cack-handedly drawn attention to what his government calls “rule of law”, a key issue in the present situation and one that affects not just Catalonia but the whole of Spain.

The Spanish government is playing hardball. Whatever post-Franco party has been in power, Madrid has always done everything possible to suppress Catalonia’s attempts to claim the right to self-determination but, this time, as October 1 looms, the response against a peaceful citizen movement has been much rougher than anyone imagined, including measures like police and Guardia Civil ships in the harbor, water-cannon trucks roaring along the highways, helicopters clattering overhead, taking control of Catalan finances, raiding the offices of the government’s IT center, the Foreign Affairs Ministry and Catalan government offices, detaining fourteen officials, impounding close to ten million ballot papers (so activists took printers into the streets to make off new ones), shutting down websites about the election (swiftly restored with mirror sites), and placing the Catalan police (Mossos) under the command of a colonel from the Guardia Civil (who, from a long lineage of Franco supporters, was charged with torture in 1992).

When Spanish police trained to hunt down terrorists were sent to guard the Catalan Finance Ministry, the Mossos formed a line in front of them, making it clear that they are in charge of security in the streets of Catalonia (as they had honorably and ably proven with the tragedy of the terrorist attack in Barcelona on August 17). Citizens mock the armed interlopers, throwing flowers at them, smiling and singing songs while, stony-faced, the uniformed gentlemen look rather foolish, especially as everyone has noticed that the ship they are lodged in is called “Moby” and has a huge Tweetie Pie painted on the side (which at one point they tried to cover up with canvas).

Then there is this matter of “rule of law”. The much-criticized articles 116 and 155 of the Spanish Constitution have more or less been put into effect. The former describes how states of alarm, exception and siege work in Spain, and the latter is applied in “order to compel the […autonomous community] forcibly to meet… obligations, or in order to protect the… general interests”, where said obligations and general interests are defined by Madrid and a Constitutional Court which shows clear contempt for the principle of separation of powers. It is stacked by legal henchmen at the orders of key players in the two powers-that-be parties, the “socialist” PSOE and the right-wing People’s Party (PP). Since the coup attempt of February 23, 1981, they have always colluded to keep “justice” at their service. So this is the same court that suspended the Catalan referendum law, arguing that it was in violation of Spain’s Constitution. State/judicial collusion isn’t lost on Catalan citizens who see the latest government actions as a coup against the Catalan Government and, more generally, democracy itself. Hence, honoring historical Spanish republican memory, many Catalan demonstrators are shouting the civil war slogan “¡No pasarán! (They Shall Not Pass!”).

Article 155 was damningly described by Pedro Cruz Villalón, none other than a former President of the Constitutional Court of Spain, as the most aggressive and unfortunate exponent of a conception of state unity which is latent in Article 2 as something preexisting, prior to and, accordingly, superior to the Constitution itself as well as the whole legal system. This absurd situation of a constitution that annuls itself in the name of the unity it hallows signals serious legal problems which, affecting Spain as a whole, date back to the “Transition” (from the Franco regime). This was actually a non-transition, or continuity dressed up as a formal, legal break with the past, and aiming to restore the monarchy and leave the hegemony of the dominant social group unscathed.

Since “unity” is sacrosanct, after José María Aznar was elected in 2000, his PP government set about rolling back autonomous region rights, brandishing what they called “Constitutional Patriotism”. The term was nicked from Jürgen Habermas who actually meant by this that, rather than clinging to nationalism, people should respect the norms and values of a pluralistic democratic constitution. But for the PP it meant that the Constitution with its expedient Article 2 had to be revered as the immaculate conception of Spanish democracy and, as such, an instrument for imposing its version of unity by force rather than respectful coexistence among the country’s different peoples.

One example of the way Spanish “Constitutional Patriotism” functions is the decision of the Constitutional Court in June 2010 on the reforms to the 2005 Statute of Autonomy of Catalonia, which had been passed by the Spanish parliament (after being “brushed up” a little, in the mocking words of the “socialist” Alfonso Guerra), when it annulled fourteen articles and subjected twenty-seven items to its own interpretation. A month and a half later the PP brought an action of unconstitutionality against this statute which had impeccably observed all the democratic procedures, claiming that 128 of the 223 articles were “unconstitutional” (although some of these selfsame articles, copied from it and enshrined in the Statute of Andalusia, are still in force in this other part of Spain). The PP thus used the Constitutional Court to bring about a maneuver described by the jurist Javier Pérez Royo as “a political operation resembling a coup d’état”, which also made reforms of the Constitution impossible.

Of course, the economic crisis and its management in favor of the ruling classes and finance sector have had their effects in the present mess, with catastrophic effects in particular for sectors of the welfare state in the autonomous communities. One by one, the mechanisms of social consensus which underpinned the shaky legitimacy of the 1978 regime were undermined especially when, with an absolute majority between 2012 and 2015 the PP, with the groundwork already done by the “socialist” PSOE governments of Felipe González and José Luis Rodríguez Zapatero, engaged in systematic looting of the public sector in corrupt practices that could no longer be hidden away by the supposed 1978 consensus, but which, nevertheless, are yet to be recognized in their magnitude and duly dealt with. For the moment, impunity is the order of the day. To sum up, Spain presently has a minority party in power with members of parliament facing corruption charges, and a government-manipulated judicial sphere which has made hostages of all the country’s citizens and peoples.         Meanwhile, Catalonia has its own major corruption scandals, for example with the family of Jordi Pujol, president of a conservative Catalan government from 1980 to 2003, bankers, and other panjandrums in Pujol’s little court, in addition to galloping privatization of the public sector with all the sleaze that entails. But the bourgeoisie got restive when a Constitutional Court decision of 2010 blocked off any chance of their having a tax regime comparable to the lenient Basque system. To make matters worse, the monarchist (Spanish) nationalist party Ciudadanos (widely rumored to be the brainchild of the president of one of Spain’s big corrupt banks Banco Sabadell) took over from the PP in Catalonia and set about its priority aim: attacking all the nation’s democratic nationalist aspirations.

The Catalans are a feisty (“tumultuous” according to the present Minister for the Interior) people and no lovers of authoritarian regimes, as evidenced as long ago as 1285 with the Berenguer Oller plebian revolt against the clergy and upper class. The Spanish soldier Baldomero Espartero said in 1842 that Barcelona should be bombarded every 50 years, while Antonio Guerola, Civil Governor in Barcelona, pronounced in 1864 that, “The rebellious personality of Catalans has often required military strength to suppress it, and long periods of time under siege.” There were major peasant revolts in the fourteenth, sixteenth and seventeenth centuries, and large-scale unrest throughout the nineteenth century when Catalonia was in an almost permanent state of emergency, to give a few examples. And then Catalanism appeared towards the end of the nineteenth century. Nearly all the revolts were crushed but moral (and morale) victories were always won by the losers in battles that had the rich and powerful on one side and ordinary people on the other.

Nowadays, dissent often takes the form of huge demonstrations. On June 9 2010, in response to the Constitutional Court decision, Catalan politics took the path of democratic nationalism, as was first augured with a demonstration whose slogan was Som una nació, nosaltres decidim (We are a nation. We will decide). This new direction came hand-in-hand with heightened awareness of the crisis of the 1978 regime as the effects of the economic crisis began to redraw the political map. By Catalonia’s national day on September 11, 2012 the slogan had become “Catalonia, a new state in Europe”, which led to a decision in the Catalan parliament to ask the Catalan government to hold a referendum whereby “the people of Catalonia could freely and democratically decide their joint future”. The president Artur Mas then had to advance the Catalan elections by two years in order to obtain a majority pro-independence government. Quick to react, the Constitutional Court annulled Article 1 of its “Declaration of Sovereignty”. This conservative government fell but the demonstrations kept growing and the Generalitat (Catalan government) is now permanently under pressure from a mass base of cultural associations, municipal governments, well-organized university and secondary school students, and a large part of the population.

The pro-independence political group consolidated its majority in the Catalan elections of September 2015 in which the Generalitat had undertaken to hold a “consultation”, or referendum, on November 9. Once again, the trusty Constitutional Court declared it unconstitutional. This time, the Rajoy government, facing elections after losing two and a half million votes in the municipal elections a few months earlier, opted for “proportional” legal repression of what it called “propagandistic” mobilization. Undeterred, the Catalan parliament voted to go ahead with the “disconnection” process. Now, with a minority Rajoy government—in power thanks to the PSOE “socialists” after their own in-party putsch—rejecting any attempt at negotiation, applying the Constitutional Court’s supple reading of the 2005 Catalan Statute of Autonomy, and rearranging the court’s executive functions in order to act against pro-independence public officeholders, the present situation is a resounding clash over what is now a binding independence referendum on October 1, which has been supported by a majority in the Catalan parliament.

The basic logic of the Rajoy government’s repression is the paradox of a purported unity superior to the very Constitution which enshrines it. With this understanding of the law, anything goes. What was once “disobedience” by pro-referendum leaders is now called “sedition”, a charge entailing up to fifteen years in prison. The government’s aim is to stymie the democratic logistics of the referendum by any means possible, thus driving it underground, if it is held at all. The powers-that-be, willfully ignoring Catalonia’s rebellious history, are unprepared for the huge mass-based opposition of Catalans in defense of their institutions, not to mention protests elsewhere in Spain, in places where people are beginning to see the true colors of this government. “Sedition” could well become epidemic since the result of the government’s efforts is that the polls suggest that 76% (and rising) of the Catalan population is in favor of the referendum, in many cases out of a desire to defend existing Catalan institutions. This is no little wobbly thrown by the small, vocal pro-independence party CUP, as the government and most PSOE supporters like to say. It is not rabblerousing. And it is not a Russian plot (as El País has apparently discovered to the joy of its readers).

Rajoy with his repression in Catalonia is banging in the last nail in the coffin of the legitimacy of a regime that was supposed to represent a total break with the Franco dictatorship. This, as Thomas Harrington has pointed out, is a moment of anagnorisis, the moment in a play when a key player makes a critical discovery. For a good part of Spain’s population, the epiphany in question is that, far from governing for their benefit, the government has two main priorities (apart from the personal corruption of too many of its members), namely obeying EU dictates on austerity (with about 30% of the population living in poverty or in hardship) and crushing any desire for autonomy in its castigated regions. In order to remain in power it depends, in the budgetary sense, on the PNV “socialist” party in the Basque Country and, in the “unity” (anti-autonomy/independence) sense, on the PSOE. But, far from reliable allies, both parties are looking out for themselves, knowing that they need new cronies if they wish to govern. And their grassroots members are disgruntled.

The pro-independence Catalan historian Josep Fontana has got to the nitty-gritty of the matter: “What, for me, is scandalous is that the PP is whipping up public opinion by saying that holding the referendum means the secession of Catalonia afterwards, when it knows that secession is impossible. It is impossible because it would mean that the Generalitat would have to ask the Madrid government to be so kind as to withdraw its army, Guardia Civil and National Police from Catalonia, and to meekly renounce a territory that provides 20% of its GDP […] so why are they using this excuse to stir up a climate reminiscent of a civil war?”

An early nationalist leader, Lluís Companys (1882 – 1940), who was executed by the Franco regime, didn’t declare independence but a Catalan republic within a federal state, reasoning that this could be viable with a revolutionary government in Madrid. Nowadays, largely thanks to Madrid’s sustained abuses of power, the call is for out-and-out independence. ETA tried in the Basque county and failed. The only way for Catalonia to have the autonomy/independence it seeks is to have a government in Madrid with which it can negotiate. The PP is not that government. Blind to history, it keeps insisting that the events in Catalonia are a “parenthesis” of “disobedience”. Yet the Catalan referendum is about all of Spain, and the outcome will ultimately depend on the level of mass resistance throughout the country. This will have to be an extended, enduring process that is rather more serious than a local tantrum. The real parenthesis in this story is the de facto state of exception imposed by the government in Catalonia, which it will not be able to sustain for long.

The drafting of the 1978 Constitution was overseen by the military and excluded the people from decisions about the monarchy, the capitalist nature of the economy, equality of peoples, and the country’s foreign alliances. These long-pending issues are also at stake in the Catalan referendum because autonomy entails the right to decide on these matters. The present situation in Catalonia is the most acute manifestation so far of a chronic political crisis that has become gravely ankylosed in the years of PP government. The democratic freedoms of Spain’s entire population are at stake in what is still being presented as just another Catalan hissy fit.

Daniel Raventos and Julie Wark’s new book, Against Charity, will be published next month by CounterPunch.

Daniel Raventós is a lecturer in Economics at the University of Barcelona and author inter alia of Basic Income: The Material Conditions of Freedom (Pluto Press, 2007). He is on the editorial board of the international political review Sin Permiso.   Julie Wark is an advisory board member of the international political review Sin Permiso. Her last book is The Human Rights Manifesto (Zero Books, 2013).

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