My friend Jamie Mayerfeld, has told me about Noah Feldman's article "Spain Overreacts to a Little Catalan Rebellion," published on Bloomberg. I think that the article contains some errors of appreciation, especially in regard to the consequences of what the columnist calls a "small" rebellion. Maybe not so small, since it caused the reaction of dozens of countries and of the European Union.
However, I will not deal with this question here, because what interests me now is to analyse the reasons that may lead some foreign commentators to perceive in a biased way what is happening in Catalonia. According with this intention, I will not follow the article point by point, but only use it as an example of many other commentators, especially from abroad. These commentators show what I consider an inexplicable sympathy to those ones who caused the crisis of the year 2017 in Catalonia.
I believe that a key element to understand what happened in Catalonia in the months of September and October 2017 (in the fall of 2017, if you allow me to be in some way imprecise, since the events began in the summer, specifically in September 6) is to assume that the "rebellion" -to employ the same term used by Noah Feldman- was carried out by the public power, not by citizens who faced such public power. I think that this fact is often overlooked. One considers the images of the people at the streets and it is instinctively internalized that the conflict arises between demonstrators (Catalan nationalists) and the police (Spanish government). This is not true. The main actor of the conflict was the Catalan Government, the peak of a public power with a budget of 32,000 million euros per year and which manages in Catalonia education, health, prisons, universities, police (17,000 armed agents) and much of the transport, among other competences (protection of minors, consumer protection, culture ...). That is to say, the "rebellion" was not against the power, but from the power, a rebellion that implied that this public power declared itself freed from the limits established in the Constitution and in the laws. A power who decided to act outside the legal limits.
As I have just said, I think that this perspective should be taken into account. It is not the same thing that a citizen or a group of citizens protest before the public power, that this public power decides to exercise the monopoly of the use of force outside the framework of the law. This is precisely what happened in Catalonia: the Catalan Parliament repealed the Spanish Constitution in Catalonia, the regional government disobeyed the Spanish Constitutional Court and finally the regional government and Parliament declared independence.
What this did mean for the Catalans who did not share the nationalist programme? I can speak in my own name: I am a citizen of Catalonia, subjected to the public power of the Generalitat and I am against the secession and against nationalism. And, in addition, I have showed openly my opposition to the secession and to the Catalan nationalism. In what situation did I find myself once the public power that rules the policemen who watch the streets I walk, the schools where my children study, the hospitals where I go to when I get sick, the University where I work and the prisons in which I would end if I am arrested, decides to act outside the law, against the Constitution and deprive me of the guarantees that I have up to now (recourse to the Spanish Ombudsman, the Spanish Constitutional Court or the European Court of Human Rights)? This is exactly what millions of Catalans felt in those weeks of September and October 2017.
I say millions and I am not exaggerating, since in Catalonia the nationalist parties obtain less votes than the parties that do not defend the secessionist project. The Catalan electoral system, which favours the areas in which the nationalist vote is concentrated, transforms a minority of votes in a majority of seats in the regional Parliament, but this should not make us forget that Catalan non-nationalists are more that the nationalists. And we also must be aware that despite the fact that the public media, the schools and the administrations use almost exclusively Catalan, more than half of the Catalans have Spanish as their mother language. Another nationalist imposition.
But let's go back to that pathological situation in which the public power decides to act outside the law. In the first year in the Law Faculty we explain that one of the differences between the Ancien Régime and modern States is that in the Ancien Régime public power acts without external limits, while in modern States authorities must subject their action to the legal limits. This submission of the public power to the law is a guarantee for citizens. For decades I had known this as part of the Theory of Law and of the Constitutional Law. In the year 2017 I knew what do you feel when you are subjected to a power that acts outside the law. And it is not nice.
That is why it was essential to recover the rule of law in Catalonia. And Noah Feldman underlines this idea in his article. Specifically, when he states that he understands the reasons for the Spanish Government to resort to the exceptional mechanisms that enable the Constitution to enforce the law in an Autonomous Community through the direct attribution of the control of the region to the government of Spain. As I have already said, the recovery of the rule of law in Catalonia was essential not only for reasons linked to the functioning of the constitutional institutions, but also to enforce the rights of all Catalan citizens, who did not deserve to be subjected to a public power acting outside the Constitution and of the law and against the decisions of the courts. A situation, obviously, inadmissible in any democracy.
My discrepancy with Feldman is about the adoption of penal measures in relation to the leaders of the "rebellion". It seems that he thinks that it would be better to turn the page without introducing proceedings before the criminal courts. I disagree
First we need to consider the seriousness of what happened. I have already advanced some ideas about that:
- The regional parliament repealed the Constitution.
- The regional government disobeyed the Constitutional Court.
- The regional government called an illegal referendum.
- Barricades and other obstacles were erected in order to difficult the movements of the police.
- The illegal occupation of schools and other public buildings was organized to hold the referendum.
- Resistance to the police was organized to prevent the policemen from complying with court orders.
- The policemen that had orders to close the premises where the referendum was being held were attacked.
- Policemen out of service were persecuted and harassed.
- In the schools the children of the policemen were publicly pointed out.
- In the schools, protests against police action were organized involving minors (in some cases young children).
- Databases were developed for the census of the referendum vulnerating the regulation about personal data protection.
- And independence was declared ... twice.
Do we really defend that this does not deserve criminal reproach? I think it is not serious to maintain this position. Some or all of these behaviours can be considered as criminal offences according with the Spanish Criminal Code and, therefore, they must be investigated. A different question is which specific criminal offences should be considered. Here there is room for the debate, a debate in which Noah Feldman is kindly invited to participate, but taking in consideration that this debate should be based on the rules of the Spanish Criminal Law. A discussion of this kind in a democratic state can only be made on the basis of the law.
And this is not a formalism. There is another confusion here that must be denounced. Sometimes it is maintained that the Spanish government should do this or that in relation to the situation of the accused due to the events of the autumn of 2017, without realizing that in Spain there is a separation of powers. Those who judge are the courts, not the government, and the accusation is responsibility of the prosecutor, not of the government. And really both the judges and the prosecutor are independent and act in accordance with what is established by the law, not according to political considerations. When, according with the law, a criminal offence has been committed, it is not an option to leave the criminal alone. There is an obligation to prosecute those crimes. It is not possible to refrain from accusing or condemning. What the government can do, once the accused has been judged and condemned -if at the end there is a condemn- , is to apply measures of grace such as pardon. But in the phase in which we are now, the government can do nothing more than respect what judges and prosecutors are doing.
Now, let's forget for a moment what I have just explained and let’s pretend that it is possible to retire the charges against those who are responsible for the events of September and October 2017 in Catalonia. What message does this convey?
To answer this question, we have to realize that Catalan society is deeply divided. People from abroad sometimes think that all Catalans are nationalists, that all Catalans want independence, that all Catalans are against the trials of imprisoned politicians and that all Catalans reject the Spanish police. That is not true. As I have indicated, at least half of the Catalans reject secession and a very significant number reject the nationalist policies that make us feel second class citizens in our own country. In short, Catalan society is a society without consensus.
And in a society without consensus, respect for the law is the only thing that guarantees coexistence. If the nationalists are allowed to skip the law without consequences, which options we, the non-nationalist, have? Only two: submission to the nationalists or also to skip the law. Do we want to create this situation, this terrible dilemma? Well, the irresponsible proposal to look the other way before the criminal offences of the nationalists would drive us to that dilemma.
Certainly, we must seek reconciliation, and for that reconciliation there is only one way: dialogue between Catalans, dialogue between nationalists and non-nationalists. But this is a path that nationalists reject. I will explain an anecdote: a year ago or so I met in a television program with Irene Rigau, a nationalist leader who had been regional Minister of Education when Artur Mas was president of the regional government. We discussed the presence of Spanish language in schools and I said that I could agree with her at one point. The moderator then pointed out to Rigau that I could agree with her and she said that she could never agree with me. For nationalists, non-nationalist Catalans simply do not exist, we are "out of the framework", and all they want is to establish a dialogue with the Spanish government that leaves the non-nationalist Catalans out of the scene. This way drives to a no solution because ignores half of the population of Catalonia. It would be good for the Spanish government to condition any dialogue with the nationalists on the previous dialogue in Catalonia and on the respect for the law. This is the way to recover coexistence. And this way is not the way of leaving the criminal offences of nationalists without punishment or of negotiating only with nationalists. The way is to recover the rule of law and to establish channels of communication among all Catalans.
These perspectives are not in Noah Feldman's article. I can understand that he neglects these nuances, because it is difficult to appreciate them from another country, but I think that they should be taken into account when you speak -and even more when you write- about the situation in Catalonia.
I thank Jamie Mayerfeld for the questions he has made and his suggestion to convert the dialogue we have had about this topic into a post.
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