The Constitutional Rupture on Trial

Argelia Queralt Jiménez

University of Barcelona

Editors’ note: In 2017 Catalonia experienced a crisis following the independence referendum and unilateral declaration of independence from Spain (previously debated on this blog here and here). Criminal trials of Catalan separatist leaders are currently underway: we gather two diverging perspectives on these trials from Argelia Queralt Jiménez and Mireia Grau Creus.

On February 12, the trial concerning the so-called 'Catalan secessionist process' began in Spain. Over the course of the upcoming months, the Criminal Division of the Spanish Supreme Court will evaluate what offences, if any, were committed by key leaders of the Catalan independence movement during the last quarter of 2017. The events that transpired at that time were of extreme severity, as they implied an institutional break within the constitutional system.

On 6-7 September 2017, the Catalan regional parliament passed two laws, one regarding the referendum on self-determination, and the other relating to the transition from the Spanish State to the new Catalan Republic . The goal of these laws was to establish the institutional break of Catalonia from Spain. This rupture, in and of itself a severe one in a democratic context, was the result of the secessionist members of the regional parliament -  representing 49% of the Catalan voters - imposing their absolute majority in parliamentary seats on the representatives of the more than 50% of the Catalan voters against independence. It is key to keep in mind that, in contrast to other contexts, secessionists do not have the majority in Catalan society. This was solidified in the elections that took place on 21 December 2017, in which 2,228,421 votes (51.73%) were for parties in favor of a “no” vote to unilateral independence and 2,079,340 (48.26%) were for parties in favor of a “yes.”

Both laws passed by the regional parliament were immediately suspended and declared unconstitutional by the Spanish Constitutional Court, in October 2017.

Despite the precautionary suspension issued by the Constitutional Court, it was through these laws that the Catalan regional government held the (illegal) referendum on 1 October 2017. It was also with reliance on these laws that it later, unilaterally, declared independence – an independence that lasted eight seconds and that has yet to be recognised by any country.

As one can see, the trial against the Catalan secessionist leaders is not a political trial; they are not on trial because of their ideas. The freedom of expression of these politicians has and continues to be respected, both before and after their indictment, as shown by their constant appearances in the media and online. What will be judged in this trial is the repeated failure to comply with the rulings of the Constitutional Court, as well as additional conduct that could constitute rebellion, sedition, disobedience, or misappropriation of public funds; all of these potential crimes are of great severity, particularly if they are committed by people holding public office or acting as political representatives.

One could argue about whether the charges correspond with the crimes being tried, notably rebellion and sedition, which could result in 25 years in prison. However, it does not seem likely that the leaders on trial devoted themselves solely to the peaceful defence of their ideas and that, consequently, they need not be (legally) accountable for their acts. Such a consideration can only be the result of a distorted understanding of what a democratic State of Law is.

For the secessionists, the breaking of the constitutional order on 6-7 September 2017, through the passing of the referendum and transiency laws, the holding of the referendum, and the Unilateral Declaration of Independence should have no legal consequences, as they were carried out through democratic means. It is true that this was done in the Catalan parliament and without any (physical) violence. However, it is radically false to claim that it is was done democratically: the views of minorities in the parliament – who represented the majority of the popular vote – were disregarded, the rights of the opposition’s parliamentary representatives were ignored, parliamentary procedure was contorted beyond recognition, and laws later declared unconstitutional, as they assumed a unilateral break with the State, were passed. A pseudo-referendum, deprived of guarantees, was held and independence was unilaterally declared. Those responsible for these decisions must be held accountable, as would be done in any other democratic state. The secessionist leaders voluntarily broke the pact of coexistence that all Spaniards accepted by democratic means four decades ago with the adoption of the Spanish Constitution, as well as through the basic institutional regulation of Catalonia, the Statute of Autonomy, passed in 2006.

Pre-trial custody of the secessionist leaders has been criticized. It is certainly reasonable to argue that there are alternative precautionary measures that could be taken, other than pre-trial detention, which would be less detrimental to leaders' rights to personal liberty and political participation. That being said, the judicial guarantees provided by the legal system for the protection of fundamental rights have been accessible to those in custody at all times, and they have taken advantage of them. In Spain, as is evident, there are no political prisoners, but rather imprisoned politicians.

Secessionists have invested a great amount of economic and personal effort in an unprecedented international propaganda campaign. However, beyond the legitimate defence of the Catalan independence as a political project, the truth is that many of the arguments and much of the information brought into the international communications arena are either false or misrepresented. 

For instance, the use of force by the police on 1 October 2017 was surely undue. However, the actions portrayed in the images shown throughout the world were never repeated again. There are no records of wounded persons admitted to hospitals that day. The supposed repression and brutality of the “Spanish police” is not a daily practice in Catalonia, where there is no violence in the streets, not against anyone.

The right to vote in Catalonia is fully guaranteed and protected, as it is in the rest of Spain. Every citizen of Catalonia has the opportunity to exercise his or her vote regularly in four types of elections: municipal, regional, federal, and European. But our Constitution does not contemplate the holding of a referendum of self-determination, as, with some rare exceptions, is the case with the rest of the constitutions in the world.

We must also remember that the right to self-determination does not apply to Catalonia, as it does not comply with the requirements established for secession in international law. Given that Spain is a fully democratic state, remedial secession, which was applied in the cases of Kosovo and South Sudan, is not applicable either; this only applies in the context of severe and violent human rights violations of a particular minority. The mere comparison of Catalonia with Kosovo is absurd and indicates an absolute lack of understanding of the Spanish democratic system and life in Catalonia.

There is an obvious political problem in Catalonia. Democratic principles would suggest resolving it in an equally political way, which could perhaps manifest itself in the form of a (negotiated, legal, and non-legally-binding) referendum. That being said, such a decision should be adopted by means of an agreement between the central and regional governments; under no circumstances should such an issue be attempted to be resolved through a unilateral decision made by local institutions, as was the case in Catalonia.

What’s more, Spain is indeed a democratic State, imperfect and with its own problems, as is the case with all other democracies. However, it is globally accepted as a full liberal democracy (see, for example, the 2019 Freedom House Report or the Economist Intelligence Unit’s 2018 Democracy Report).

During the upcoming months, what will ultimately be judged are the legal and criminal consequences that come with disobeying the Constitution, the laws legitimately passed by the Spanish Parliament, as well as the Catalan regional equivalent, and the rulings of the Constitutional Court, the ultimate guarantor of the constitutionality of the activities carried out by all public authorities. This is the true goal of this trial: the respect of the standards of coexistence of a democratic State of Law.

Argelia Queralt Jiménez is Professor of Constitutional Law at the University of Barcelona.

Suggested citation: Argelia Queralt Jiménez, ‘The Constitutional Rupture on Trial’ IACL-AIDC Blog (22 March 2019) https://blog-iacl-aidc.org/2019-posts/2019/3/22/the-constitutional-rupture-on-trial