Is prison for Catalan independentist leaders good for Spain?

The last few days have seen the arrest of Carles Puigdemont and Clara Ponsati, after judge Llarena reactivated their international arrest warrants. Carmen Rovira has absconded, and will most likely be subject to a further international arrest warrant.

The arrests have been greeted with joy and celebration by a section of the Spanish population, the Spanish nationalists, whose position in this issue is to diametrically oppose any initiatives by Catalan separatists. These Spanish nationalists see the arrests as satisfaction for their thirst for revenge against those who dared challenge Spain. The Catalans will not get away with it. It is important for moderate Catalans (I have given up on the others) to understand that those feeling so vindicated are a section of the Spanish population, by no means all.

When analysed objectively, it is difficult to see how the arrests can be good for either Spain or Catalonia. They will undoubtedly result in the further radicalisation of the more extreme sections of both sides of the Catalan independence debate and, therefore, foster further division, making the political situation more difficult. Further erroneous claims of political imprisonment will be issued by separatist leaders (I blogged on the issue of political imprisonment in Spain in a previous post). The Spanish nationalists on the other side of the debate will talk of just deserts.

The fact that this step is negative for stability in Catalonia, unfortunately, cannot be a consideration which helps prevent it. This is democracy, which is based, above all else, on the separation of powers. This means that the judicial cannot decide politically what it tries or does not try, it must proceed on evidence. It also means that the executive cannot decide what it takes and does not take to court, it must challenge in court any perceived breaking of the current law of the land which falls within its remit.

In this democracy, therefore, Judge Llarena cannot act politically. He must follow the legal process. His duty, as a judge, is to, once presented with an accusation of rebellion which has enough supporting evidence, try it in court, to establish whether it has taken place. In this case it would appear that there is indeed sufficient evidence that this may have been the case, although it is not clear cut when one reads the relevant article of the constitution and the jurisprudence. But, whether rebellion has or has not existed can only be decided in court, and therefore it must be tried.

As for the Spanish government, many in Catalonia speak of the lack of zeal shown by the Spanish government when pursuing corruption as a justification for the claim that the same lack of zeal should be shown in the Catalan case. However, this is not an argument. Two wrongs don’t make a right. On its merit, alleged rebellion must be tried. The fact that corruption has not been pursued with the same enthusiasm has certainly done significant political damage to Spain and represents, in my opinion, clear grounds for the current Spanish government to resign, and for some of its leaders to potentially see their day in court in due course. But it is irrelevant to the course of action that should be followed in Catalonia. Catalans making this argument should also remember that a very significant section of the Spanish population feels equally aggrieved by the dereliction of duty shown by the Spanish government in corruption cases.

So, if we accept that a trial is necessary, then we move to the question of imprisonment pre-trial. Judge Llarena has the duty to decide whether the accused should be detained prior to the trial on the basis of the Spanish legislation. To be clear, and I have blogged on this previously too, the Catalan leadership is rightly detained, on the basis of current legislation, because of what they are accused to have done in October 2017, and because there is risk of flight and/or of re-offending (this is obvious in the latter arrests, as the subjects have fled already). It is very sad, however, to see politicians that represent a significant percentage of the Catalan population in jail. It may be morally wrong, maybe even unjust, this is of course a matter of personal opinion in this specific case, but in practical terms, it is unavoidable. It would be very dangerous to change the legal system to allow rebellion just because in this specific case it has significant support. Such a change would allow, for example, military coup d’etats, like Tejero’s in 1981.

Legal process must therefore take its course, whether it is positive or negative for the current political situation. The best would be for it to be as swift as possible. Personally, I hope that the result is absolution on the basis that not sufficient proof exists that there was inciting to violence. This will be a matter of interpretation for the judge, and my information, like everyone else’s, is based only on anecdotal evidence. That is the reason why some time must be given for both sides to build their case and present clear evidence of such inciting to violence, and for the security forces to investigate it. If doubt exists, then principles of presumption of innocence prevail.

I am under no illusion that, should the result be absolution, the tried would seize the opportunity to present it as reivindication of the justice of their cause, rather than proof that the Spanish democratic system is alive and well, therefore driving an even bigger wedge through Catalan society. They will speak of unjust imprisonment and prosecution, further radicalising their supporters. The Catalan leadership has long ago chosen to, like any populism, reduce democracy to the decision of the majority at a specific moment in time. Democracy is much more than this. It is separation of power. It is rule of law. Otherwise, we would have to call the Holocaust, ethnic cleansing in the old Yugoslavia, the execution of homosexuals in Muslim countries and the massacres in Rwanda democratic. Anyone who feels tempted by the siren calls of populists to reduce democracy to a simple vote, should remember those and the many other examples when the majority has been wrong and democratic institutions have not been in place to protect the minorities. The Catalan leadership should retake the path of change within the law. They claim it to be impossible because they failed once, and they justify their acting outside the law on this basis. This, of course, is intellectually corrupt. The fact that you don’t get your way at the first attempt does not justify breaking the law after that. This should be obvious to many who have supported the illegal actions of the Catalan leadership. I have also blogged on what path I believe they should follow.

Whatever the outcome of the trial, our current politicians, both in Catalonia and Spain, have failed us completely. They have missed every chance to build bridges, to reach out to the other side. They have played by the modern politics playbook. Speak only to and for your side. Drive radicalisation and reinforce the difference, not the common. Destroy, instead of build. They have behaved with irresponsible victimism and dishonesty on the one side, and with intolerant bullying on the other. It is time for new leadership on both sides of the divide, and for a clear, mature and responsible approach to the process. It is, however, difficult to see how this may ensue given the drift away from rationality observed in significant sections of the population, prepared to accept any argument just because of which side makes it, instead of exercising critical review.