As the dust settles following Miller (No. 2)/Cherry, tension inevitably mounts over the next instalment of the Brexit saga, and how the Prime Minister will interpret his commitment to respecting the Benn Act. Against this backdrop, it is interesting to speculate as to whether recent events in Spain will have any impact upon his decisions, because the Tribunal Supremo in Madrid has just sentenced the Catalan politicians who chose to disregard both the Spanish Constitution and the courts. In short, although cleared of the most serious charge of rebellion, the majority were convicted of the lesser (but still extremely grave) offence of sedition, whilst others were found to be guilty of misusing public funds. 

Even though the incarcerated separatists and their followers argue that this was a political decision, maintaining that they are prisoners of conscience, there is no evidence to support such an allegation. Indeed, it flies in the face of undisputed facts, given that their illegal acts are neither denied nor in doubt. Whilst such a rallying call for protest and sympathy was widely anticipated, being effectively their only remaining strategy in pragmatic terms, there is little, if any, objective basis to justify it. The politicians concerned knew that they were breaking the law, but hoped to generate enough pressure to avoid sanction. No State committed to the Rule of Law could allow them to succeed.

It is no accident that early indications from the Spanish legal community are almost universally in agreement with the verdict, and that mainstream figures from both left and right-wing parties equally endorse its inevitability. As the Spanish premier Pedro Sanchez observed, all citizens must be equal before the law, and nobody in these proceedings has been judged for their ideas. It is rightly accepted that an ideological commitment to Catalonia’s independence is an entirely legitimate position, and it is widely recognised that separatists have as much right to the political arena as anybody else. The men and women facing substantial jail terms are in that situation because of their actions, and these have been declared wrongful not as the result of some subjective moral or political assessment, but because they were in clear contravention of Spain’s 1995 penal code.

There have been many twists and turns in relation to the separatist Catalan politicians at the centre of this maelstrom (a synopsis of them can be found in previous blogs). However, for present purposes, the key fact is that in 2017 they chose to wilfully defy court rulings and arranged an unconstitutional referendum at the tax-payers’ expense. At that point, they effectively placed themselves above the law. It is also important to remember that they were fully aware that violence and casualties were likely to ensue in such a situation, but pressed ahead regardless.

Without a doubt there is scope for debate about the rights and wrongs of events prior to this point. On the one hand, the intransigence of Rajoy’s regime in refusing to even enter into dialogue about Catalonia and its future was an understandable cause of deep frustration and bitter resentment. On the other hand, though, it should be recalled that the Puigdemont regime had itself been accused of abusing due process in Catalonia’s Parliament, and that 52 opposition members had left the chamber in protest at the manner in which legislation enabling a referendum was passed. Consequently, the separatist faction never possessed an unsullied claim to be knights in shining armour, galloping in to defend the interests of the whole Catalan community, a consideration worth stressing, because concerns about the probity of Puigdemont’s executive were largely overlooked by the Anglophone media. Nevertheless, wrangling over the lead up to the illegal referendum is a distraction from the main issue now facing us.  

The fundamental point is that a group of people exercising political power decided that they were justified in ignoring a court of law which was delineating the scope of their authority. This is key, because if the executive is free to set the limits on the boundaries of executive power, then the separation of powers becomes a mockery, and no effective safeguards against tyranny remain. This is such a basic constitutional principle, that to flout it was to cross the Rubicon. In the same way Julius Caesar very deliberately brought his troops over the river in defiance of the Roman Senate, Puigdemont and his followers understood that they were breaking with the existing legal order, but were gambling on getting away with it.

It must be highlighted that unlike Caesar, these politicians were not appropriating military force, and although the Supreme Court concluded that there had been undeniable acts of violence in Catalonia in autumn 2017, these were not severe enough to justify a conviction for rebellion. Interestingly, the judges appear to have adopted a fairly restrictive interpretation of the Spanish penal code, which has worked to the defendants’ advantage. The text of Article 472 setting out the crime of rebellion, requires the accused to have risen up “violently and publicly”, but does not actually set any threshold on the level of violence required. This is not to suggest that the justices were incorrect in their ruling, quite the opposite: the offence is geared towards threats to national stability and the Constitution, and it would have been, in our view, excessive to invoke it in other circumstances. Nonetheless, had the Supreme Court been minded to pursue the most punitive approach possible towards the accused, it could have opted for rebellion without in any way straining the words of the text. The fact that they refrained from doing so demonstrates the fallacy of presenting this ruling as the outcome of a witch-hunt.

As previously stated, the crime of which they major-players were convicted is that of sedition, which is set out in Article 544:

Conviction for sedition shall befall those who…publicly and tumultuously rise up to prevent by force or outside the legal channels, application of the law, or any authority or public officer from the lawful exercise of the duties thereof or implementation of the resolutions thereof, or of administrative or judicial resolutions.

Given that the defendants had ignored a court ruling suspending the legislation enabling their referendum, on the grounds that it was being arranged in an unconstitutional manner, and proceeded to organise the vote with public funds with which they were entrusted, it is difficult to see how they could not be convicted of those charges as outlined. Significantly, they deliberately defied a court order, presumably hoping that their position and status would shield them from the consequences. The vote on Catalonia’s independence could not be regarded as a democratic mandate for anything, given that there was no neutral oversight of the ballot, and that it took place in an atmosphere of violence, combined with known illegality, meaning that many citizens were unwilling or unable to participate.

Therefore, the politicians who used that vote as a mandate to place themselves above the law had to face a reckoning. Otherwise, how could the State justify using coercive force against any citizen who claimed a personal moral or political belief necessitated them to sell controlled drugs, or indulge in hate speech? Civilised society cannot function at all if everyone can opt in or out of legal rules, whilst a country which permits only the powerful to do this has lost any commitment to democracy and equality. If politicians were allowed to decide whether and when to obey the law, nobody’s fundamental freedoms would be safe. Spain and its Supreme Court were compelled to defend the Rule of Law and impose substantial prison terms for such abuses. Yet the sentence hardly constitutes a happy ending. There are no winners in this situation, and whilst acknowledging the inevitability of this outcome, many Spaniards feel sorrow and discomfort that it ever came to this. Fairness requires an acknowledgment that it was an honourable decision on the part of these defendants, including Oriol Junqueras, to face prison and trial, especially when Puigdemont chose to abandon them and flee the jurisdiction. Moreover, whilst many are keen to draw a line and move onwards, the fate of the jailed politicians is likely to ferment bitterness and unrest, as is evidenced by some of the protests which have already occurred in Barcelona.  This must be a cause of ongoing concern for Spanish citizens across the political spectrum when reflecting on the path ahead.

Looking across the water, there are some salutary lessons which the United Kingdom and other countries might draw. Although purely advisory in nature, the vote on Brexit was lawful and properly conducted, meaning that it would be a gross distortion to compare it to the purported referendum which took place in Catalonia. Notwithstanding, the decisions in Miller (No 1) and Miller (No 2) /Cherry make it abundantly clear that the Government cannot act without sanction and approval from Parliament. If political players attempt to step outside the bounds of the law, even whilst believing that they have a groundswell of popular support or a vote on their side, they will inevitably be damaging their own future, but much more importantly, the wider public interest.   

Dr Javier García Oliva, Senior Lecturer in Law, The University of Manchester

(Suggested citation: J. García Oliva, ‘Sentencing the Catalan Separatists: The Painful Vindication of Equality Before the Law and Separation of Powers’, U.K. Const. L. Blog (16th Oct. 2019) (available at https://ukconstitutionallaw.org/))