Originally published in Spanish: “Una conspiración a pleno sol”. Daniel Gascón. Tinta Libre nº66. Febrero 2019
The events that took place in Catalonia in the fall of 2017 were both new and old. On 6 and 7 September, the regional parliament of Catalonia passed the Law of Juridical Transition and the Law of Referendum. It did so with a bare-bones majority in seats that did not stem from a majority in votes: such a number of seats wouldn’t have been enough to modify less trascendent regulations, yet it was considered sufficient for a constitutional change. This disregarded the advice of the chamber’s legal advisors, broke the rules of the regional parliament, regional statute and Spanish constitution, and violated the rights of the opposition. It was, in Kelsen’s classic definition, a coup: an attempt to go from one regime to a different one in a manner not foreseen in the law.
It was hardly new for the institutions of the state to be used against the state itself, and perhaps no more than an anecdote that there was no need to to take over the public media as, after all, they were already at the service of the secessionist cause. This was not the most tragic moment experienced by the Spanish democratic state, but it was one of the most unsettling; we all know what happened: the riots of 20 September, the pseudo-referendum of 1 October, held without democratic guarantees and with the uncoordinated action of the security forces after the disloyalty of the Catalan regional police, the threat of confrontation, the articulation and visibility of a pro-Constitutional position in the demonstration of 8 October, the declaration of independence which was suspended after eight seconds, leading to the activation of Article 155, the immediate call for regional elections, the pre-trial detention of a number of secessionist leaders and the flight of others such as Carles Puigdemont or Toni Comín.
Yet it was also different. The difference was that one did not know whether what was happening was in earnest or in jest: Schrödinger’s independence, quantum secession. If it failed it would be called a bluff, a performative action, an instrument of negotiation, a demonstration of free speech, a feint civil disobedience. If it succeeded it would be a fait accompli. Another peculiarity was the role played by violence. Among the secessionists’ arguments was the notion that they are a popular, peaceful movement: the former is debatable, for Guillem Martínez or Jordi Amat have rightly pointed out that one of its driving forces was traditional nationalist elites’ search for an escape in the face of growing antipolitical sentiment and the cases of corruption constantly hitting the news; the latter is just as questionable. The movement’s originality lay in its attempt to force the opponent (the state) to be the one to employ violence. Public opinion, whether in Spain or abroad, would never tolerate a heavy-handed response from the state to what was portrayed as a demand for democracy (albeit an illiberal, plebiscitary democracy). They were using empty space to carve out shapes, like Pablo Gargallo in his sculpture The Prophet. Producing this effect required a strategy of tension, as the secessionist leaders knew full well: Catalan police had warned them of the dangers involved. And as people with powerful imaginations, it would have been strange for them not to fathom other risks to society. We also know what happened next: the illegal unilateral road had misunderstood the functioning of the states (which has other ways of responding, inside the country and within an order based on the law and on state power), markets (which reject instability) and identity (if you activate certain political cleavages in your camp, your rivals may also articulate a response around them), and failed. Talk of repression is half naivete and half cynicism. It’s strange to have thought that the Spanish state, which is based on the rule of law, would not believe in its own legitimacy and would thus fail to defend itself. And, of course, a state is many things: a covenant of inter-territorial and inter-generational solidarity, a massive insurance company, but also a machinery for repression. The secessionists knew as much: that’s one of the reasons they wanted their own state.
This combination of legal break and lack of explicit violence defies categorization. I’ve called it a post-modern coup, Santos Juliá has said the declaration of independence of 27 October was a “civil pronunciamiento”, Ignacio Sánchez-Cuenca prefers the term “constitutional crisis”. Or, as Rafael Latorre has written, we’ll have to swear all this actually happened. The problem has also partly affected assessment of the criminal responsibilities incurred. During the investigation, judge Llarena charged 20 people for crimes of rebellion, disobedience and misappropriation of public funds. According to article 472 of the Criminal Code, one is guilty of rebellion when one “rises up violently and publicly in pursuit of any” of a number of ends, including declaring the independence of any part of the nation’s territory. Some have criticised the charge of rebellion: they argue that the presence of violence is ambiguous enough for the defense to successfully question it. The judge’s edict, as Tsevan Rabtan has explained, establishes a novel and arduous distinction between acting with violence and acting violently: the former would require violence against people, whereas the latter wouldn’t.
The Chair of Criminal Law Enrique Gimbernat, who had initially criticised the charges of rebellion, justified his change of heart as follows:
Article 472.5 does not establish that it is constitutes rebellion to “declare independence” through a violent public uprising, but merely that such an uprising be aimed at the “end” of declaring it, which is precisely what happened on 1 October: because the violent acts carried out that day in Catalonia indeed had the aim, not to vote yes in the referendum for the referendum’s sake, but rather to “declare” independence, something which necessarily required a previous secessionists victory in the vote, since, according to article 4.2 of the unconstitutional Catalan Law of Referendum, “the [regional] Parliament, in the two days following the proclamation of official results by the Electoral Commission, will proceed to formally declare the independence of Catalonia”.
Some believe the law creates a certain defenselessness. When the article was written, certain groups insisted that that violence be explicitly included; others considered it impicit in the term “uprising”. One consequence of this, which González Pons already warned of when the law was being negotiated, is vulnerability to a self-coup. Pedro Sánchez, when he was not yet Prime Minister, declared that the description of the crime of rebellion had to be adapted to new times.
The technical difficultes involved in judging a never-before-seen phenomenon interact with an atmosphere which is extremely loaded, both politically and emotionally. Measures like the pre-trial detention of the accused add to this: while it may be justified and possibly useful as a warning (though Torra has given fiery speeches, he hasn’t dared break the law), they are controversial and fuel the misleading claims that there are “political prisoners”. The Socialist Party, in Government, has attempted to reduce tensions. This is a risky strategy, which draws the party apart from former allies and from part of its electorate throughout Spain, which will be considered legitimate only if it works out, and which usually encounters the dry response of Quim Torra—but it has helped divide the secessionist camp into various degrees of acceptance of reality. The secessionists know that the unilateral strategy has failed. The imprisoned politicians are a tool for mobiilzation: this is no longer about the referendum, which Jordi Juan and Jorge San Miguel rightly dubbed the MacGuffin of secession; now, demands are much more limited. There may be guilty consciences involved: the accused will pay (they have already paid a great deal: a loss of liberty, for instance) for acts that were carried out and defended by many more. But for the time being it seems that nobody has the political capital or longing for leadership to become a hero of retreat. If anyone could do such a thing, it’s probably Esquerra Republicana, who additionally has the most legitimacy: its secessionist views were not the result of a sudden conversion, unlike those of bourgeois nationalists. Its leaders would rather await a more favourable moment: they call it moderation, but it would be better called patience.
Ciudadanos and the People’s Party support a tougher stance towards secessionism; the Catalan problem has fueled the emergence of a parliamentary far right which opposes the territorial organization of Spain into devolved regions. Part of Catalanism seeks to go back to a world that will never return: the consensus of the eighties and nineties is broken and it seems impossible for it to come back, no matter how comfortable it may have been.
Spain has a separation of powers and a conservative judiciary. At the same time, the fall into disrepute of many institutions and of mediators also affects the courts. Politicians –with their whispers in the corridors– and the media –willing to simultaneously fall behind and fuel any instance of misinformed outrage– further blur the lines separating the three powers. And the trial will take place in a climate of linguistic inflation and propaganda, a new battle for the narrative with everyone interested in the message of the foreign press, which will repeat whatever we say.
In Take the Money and Run, Virgil Starkwell, played by Woody Allen, tries to break out of jail by threatening two prison guards with a gun fashioned out of a bar of soap. When it starts to rain, Starkwell is left holding a handful of foam. In our case, one of the questions is whether or not the secessionist leaders knew their gun was made of soap. Oriol Güell argued in a recent article that they knew their ends could never be achieved. A few others, judging by declarations and gestures, seem to have believed their own propaganda—though perhaps one might question whether sincerity is really that crucial in defining a crime.
What the judge’s edict reveals, and has been chronicled in works like Lola García’s El naufragio (“The Wreck”) or Sandrine Morel’s En el huracán catalán (“Inside the Catalan Hurricane”) is that the secessionist process was, to quote Alexander Koyré, a conspiracy in broad daylight. For years, the secessionist leaders challenged the state, disregarded warnings from the courts and forged the institutions and rules for a breakup. They brushed aside other ways of seeing identity and smothered political Catalanism, following a strategy of polarization which has inflicted on Catalan society wounds that only time, generosity and a true acknowledgement of those with differing views will ever heal.
