Law and Lawlessness in Catalonia

What is going on?

It looks like the Catalan separatists have lost their nerve. Appearing to declare independence and then immediately “suspending” it. Maybe they have made a deliberate move to force the government’s hand.

Despite being seen on TV signing the UDI document the leading Catalan party never put it through the correct channels in their own regional parliament. They have a majority so getting it passed should be a formality but even so… For a party shouting about the Catalans’ democratic right to vote in a referendum it looks decidedly undemocratic.

One would assume that such a document is not even valid (‘legal’ does not seem to be the right word just yet) as it has not been presented to their own parliament. The central government have given them until Monday 16th October to say clearly whether or not they are declaring independence. But based on what I have heard the obvious answer has to be a resounding “No”.

So, was it all bluff for the cameras? It appears that way. Far from looking like a game of high stakes poker this is in danger of turning into a farce.

Who Will Blink First?

Mr Puigdemont’s decision to suspend the declaration of independence is both tactical and understandable. There is no clear scenario for secession and no obvious legal path offered by Spanish constitution. Right near the beginning of the 1978 constitution, Section 2 proclaims Spain’s “indissoluble unity”. Section (Article) 155 considers the consequences of breaking section 2. (see below)

If UDI goes ahead then Señor Puigdemont could well be considered guilty of sedition, the punishment for which in Spain is 8 to 10 years of prison.

He knows all this. He is either actively encouraging the government to make a move or simply trying to push the boundaries as much as possible. He may become a martyr (albeit behind bars) or the central government looks like it is beaten. Either way it seems, he wins.

Meanwhile there are stories that some businesses and banks in Catalonia oppose independence. Some are already moving head offices out of the region. Independence could be a recipe for economic disruption.

A little History…

In 1934, a man called Lluís Companys led a Catalan nationalist uprising, which was not supported by all Catalan representatives, against the republican government. He proclaimed the Catalan State (Estat Català) which led to him being arrested and sentenced to thirty years in prison. His actions were seen as an attempted Coup d’État as Companys had acted against the newly democratically elected centre-right republican government.

After colluding with the Soviet Union during the civil war and ending up on the losing side he fled to France but was arrested there when the German forces occupied France. He was sent back to Spain where he was jailed, humiliated and shot.

Apart from the ending it is easy to see parallels with what is happening now. The words “coup d’etat” (golpe de estado in Spanish) have already been used in reference to Mr. Puigdemont’s actions and inciteful stance.

He is safe in the knowledge that in this day and age the chances of being shot are zero. However, jail-time is a distinct possibility and some kind of martyrdom awaits.

It is too easy to make reference to Franco and his regime at times like this. The Catalans do not miss a chance to do so. However, señor Companys was arrested for his attempted coup d’etat by a ‘democratically elected republic’. Ironically, that is exactly what the Catalan separatists would like to declare themselves.

The Law is the Law…

Here’s the thing…There are going to be a lot of Catalans who are not going to like this section but it has to be stated. In 1978 all sides from all the region in Spain signed up to the Spanish constitution.

I am an engineer so unlike a scientist who can deal in the theoretical I am used to dealing in reality. Either something works or it fails. In other words I like to deal in the facts only. And the facts are as follows:

It is quite clear that Mr. Puigdemont is breaking the law and is guilty of sedition – as are all who signed that UDI paper.

That may come as a shock to pro-independence Catalans. It may even anger them. But consider this. It is a law of the land and quite clear and unambiguous. Should someone not be prosecuted by the law if they rob your house at gunpoint? Should someone not be found guilty of breaking the law if they drive a van up onto a pavement and run over and kill innocent pedestrians? The latter example actually happened in Barcelona recently of course.

The point being this: Either there is a list of laws to be followed or there is not. You cannot pick and choose just because you like the idea of being an independent state.

Therefore Mr. Puigdemont and indeed all those that signed that paper calling for UDI should be prosecuted under the law of sedition. Unlike the UK sedition is a still against the law in Spain.

I am genuinely trying not to take sides here but can any lawyer please explain how these people can stay out of jail?

I cannot see it.

Spanish Constitution 1978

Section 2

The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognises and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.

Section 155

  1. If a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government, after having lodged a complaint with the President of the Self-governing Community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the Senate, take all measures necessary to compel the Community to meet said obligations, or to protect the abovementioned general interest.
  2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.

 

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