"No pact with the Spanish State to imprison us!" (Photo by Pau BARRENA / AFP)

Spanish suicide

Scrapping “sedition” laws enables separatists

Artillery Row

On 1 October 2017, the survival of Spain as a distinct, 530-year-old nation state was put on the line. The pro-secession government of Catalonia stage-managed an illegal referendum, speaking for at best a minority of its residents. This plebiscite thwarted the will of the region’s unionist majority — which views Catalan nationalism as socially exclusionary, culturally parochial and economically suicidal — to say nothing of the 40 million non-Catalan Spaniards whose sovereignty such a secession would effectively abolish.

The law, in the short run, prevailed over the lawbreakers

In a badly choreographed move that foreign reporters largely mischaracterised in no bad faith, the central government — helmed at the time by the right-of-centre Partido Popular (PP) — responded swiftly in the only way the Constitution allowed: it sent police to ring polling stations and invoked the Constitution’s article 155 to supersede the lawbreaking regional executive. That entire document, adopted three years after Franco’s death in 1978 by 92 per cent of the voting public and only marginally losing adherents since, pulls a delicate balancing act between quasi-federalism and the cohesive glue of nationhood. Whilst affirming the diversity of Spain’s “nationalities” (Catalan, Basque, Galician and others), the Constitution’s article 2 proclaims the “indissoluble unity of the Spanish nation, common and indivisible homeland of all Spaniards”. The law, in the short run, prevailed over the lawbreakers.

The penal response took somewhat longer. Around the vote’s two year anniversary in October 2019, Spain’s High Court unanimously sentenced 9 of the 12 ringleaders to jail terms between 9 and 13 years for sedition. All comparable democracies typify this offence, under one name or another, as an extremely grave crime against the nation’s unity and sovereignty (not least the US, where leaders of the Oath Keepers groupuscule were put on trial last month, on that charge, for their role in the 6 January 2021 storming of the Capitol). Though popular with most Spaniards whose tax money had funded the entire boondoggle, the rulings were deemed unjust by the culprits, and unnecessarily harsh by progressives concerned with “resolving” the Catalan crisis through dialogue with the secessionist top brass.

Madrid changed tack in the summer of 2018 when, on a repeat race, a coalition came to office of the socialist PSOE, the far-left Podemos and a slew of left-regionalist parties, including Esquerra Republicana de Catalunya (ERC), one of the plebiscite’s main acts. In the summer of 2021, PM Pedro Sánchez issued executive pardons to the nine seditious convicts, upholding their exclusion from holding office but setting free those imprisoned (a search is still under way for the fugitives, including the Catalan president at the time, Carles Puigdemont, pending a euro-warrant for their arrest). The rationale behind the pardons was strategic leniency: you’re given a pass this time, but there won’t be a second time.

Yet partly due to electoral design flaws, the Spanish state’s ability to prosecute similar offences in the future — if they do occur — is being undermined, this time through a legislative backdoor. Under the D’Hondt method, parties popular in only one region can claim more MPs in the national legislature than those spread thinner across regions. With its inflated group of MPs in a capital it does not recognise as its own, ERC proved the kingmaker to Sánchez’s coalition when it formed. As payback for its unwavering support thus far, the coalition’s two nationwide parties PSOE and Podemos filed an omnibus package in early December that would altogether scrap “sedition” from the penal code, replace it with a more leniently punishable crime of “aggravated public disorder, and revise downwards the penalties for non-profitable embezzlement (the secondary charge of the Catalan coup-plotters).

The opposition has switched to stop-the-coup mode

As a civil law state, all Spanish law applies retroactively. Therefore, though the accompanying jail terms stand pardoned, the sentences originally meted out in 2019 remain valid but would be shortened, if the bill passes, from a maximum of 15 years to a maximum of only five. Those charged with embezzling only would also be let off the hook. More importantly, by lowering the maximum sentence for sedition, the bill would leave Spain vulnerable to a do-over in Catalonia (ERC has been telling voters it seeks one) or similarly seditious attempts in other regions. The bill’s net effect, in other words, would be lowering the guardrails against break-up and dismemberment.

Amidst a fury of vitriol perhaps unseen in Spain’s forty-four year democratic experiment, the package in question worked its way through the initial hurdles in a plenary last week. The government wants it fast-tracked before the year’s end to secure ERC’s support in the coming year’s budget. It has pork-barrelled into the bill several adjacent reforms, such as lowering the threshold of judges in the judiciary’s governing body needed to appoint magistrates to the High Court, where all questions of this nature are ultimately decided. 

Polarising dynamics have been brought to — and remain there as of this writing — an unprecedented fever pitch. Pedro Sánchez, on one hand, claims the logrolling is necessary to build the essential goodwill with his Catalan coalition partners and persuade them to lay down their arms. Viewed by his opponents as a hopeless cynic who will stop at nothing to remain in power, he likely wants to go down in history as the leader who braved the proto-fascist cries of “treason!” and held out an olive branch to the secessionists. The question is what that olive branch will be met with. Meanwhile, the opposition has switched to stop-the-coup mode, agitating against a rival it claims is undermining the Constitution, the separation of powers and the unity of the country. A substantial part of PP and all of Vox, its conservative rival, are behind a motion appealing the bill to the High Court, whereby they hope to nip it in the bud. If they fail, and the bill succeeds, the country Spaniards will wake up in after Christmas will have changed beyond recognition.

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