People attend a gathering in support of the members of the dismissed Catalan cabinet regional Parliament in Barcelona.
People attend a gathering in support of the members of the dismissed Catalan cabinet regional Parliament in Barcelona. Juan Medina/Reuters

It’s been a rocky road since declaring sovereignty from Spain.

Even by recently chaotic global standards, it’s fair to say that Spain has had a pretty bumpy week. Last Friday, the leaders of the Catalan parliament were declaring independence for Catalonia. Today, eight of those leaders are behind bars. Their incarceration pending trial is the culmination of a standoff between the regional authorities—who declared that the results of the October 1 referendum on independence gave Catalonia the right to secede from Spain—and the national authorities, who had declared that the referendum, heavily disrupted by national police, was illegal.

With Catalonia’s regional president Carles Puigdemont having fled to Brussels earlier this week, eight cabinet colleagues were remanded in custody yesterday (and one was let out on bail) in preparation for a trial focusing on their involvement in Catalonia’s referendum and independence declaration. This sounds tumultuous enough, but the fallout from the Catalan arrests could possibly be so serious that everything that’s happened up to now could be a mere prelude.

Some of the reasons why are obvious: Throwing a national government’s opponents into prison looks despotic under any circumstances. The crisis goes deeper than that, however, suggesting a poor separation of powers between the state and the courts, which may serve to bolster Catalonia’s pro-independence voices.

Some sort of legal proceedings against the Catalan cabinet were probably inevitable, given that the referendum and subsequent independence declaration both violated the terms of Spain’s constitution. But the the form that this redress has taken is blunt and shocking. The court case reveals some potential cracks in Spain’s national contract—as this English Twitter thread ably explains, specifically the heavily politicized character of the country’s justice system.

Spain’s national chief prosecutors are appointed by every incoming government. This means that the incumbent has very close links with whoever currently controls the Madrid government. Right now, Spain’s chief prosecutor, José Manuel Maza, is looking very much like a willing accomplice of Prime Minister Mariano Rajoy. That’s because, among all the possible, legally viable accusations that the prosecutor could have leveled at the Catalan ministers, he has chosen one that is extremely contentious: rebellion.

The incendiary-sounding offense, which carries a maximum sentence of 30 years in jail, is not normally one that falls under the jurisdiction of the supreme court. As this article in newspaper El Diario notes, the court itself has underlined this distinction in the past. In 2008, the court gave the opinion in a high-profile case that it did not have the jurisdiction to oversee crimes against humanity charges for offenses committed under Franco that had been brought by the investigating magistrate and human rights campaigner Balthasar Garzón. The court’s current stance would seem to contradict this position.

Furthermore, under Spanish law, a person can be deemed guilty of rebellion only if their actions were accompanied by violence. The violence during the Catalan crisis so far was committed by national police against people attempting to vote during the October 1 referendum. Unless this is to somehow to be twisted into being the fault of the Catalan government, it’s hard to see how the charge can hold.

The decision to invoke such a serious charge against Catalan politicians partly reveals the level of shock and anger amongst some Spanish citizens outside Catalonia, who are more than a little spooked at the dramatic acceleration of a crisis that could have provoked the country’s break-up, and still could. That national prosecutors nonetheless intend to prosecute the Catalan Nine suggests that they are trying to use their powers as tools of political punishment, an approach that smacks heavily of autocracy, and of failing to maintain the separation of the powers of state.

It’s not hard to imagine the effect this must be having on Catalans, who at least until this summer tended to be more likely to be against independence than for it. To feel your interests attacked or side-lined by a national government is unpleasant but normal enough. Many people feel this way at some point, because governments by nature prioritize the needs of their base. Following the violent crackdown by national police on referendum day, this court case can only further the impression that both the national government and the architecture of the state itself want to deny them a right to guide their own future, whether independently or as a continuing part of Spain.  

Where this leaves the temporarily suspended regional government in Catalonia is open to question. Over the past week, they have at times looked very feeble indeed, their leaders having declared independence with tenuous justification before abruptly leaving the country, only to receive a decidedly lukewarm reception while attempting to evade arrest in Brussels. But while Puigdemont’s flight has been cited as justification for the imprisonment of the Catalan Nine—to stop them following his lead and leaving the country—the arrests have also served to make his abrupt departure from Spanish territory seem more justifiable.

Indeed, the case has served to temporarily unify Catalan politicians: Barcelona Mayor Ada Colau, no natural ally of Puigdemont, has talked of a “dark day for Catalonia” and urged a common, bipartisan front to free figures she calls “political prisoners.” Already, there’s evidence of some civil disobedience in Catalonia, with cars massing at some points to block the borders.

The impeding court case also casts a heavy shadow over Catalan regional elections hastily called for December 21, after which regional autonomy would be reinstated by the national government to whoever wins. How, after all, can a party of government fight a campaign when a large section of its major figures have been placed behind bars? How can any result reached under such circumstances be deemed free and fair? The court case against the Catalan Nine may have been an intended crackdown on separatist activity. Instead, it is only likely to fan the flames.

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