The Rule of Lawfare

Dave Evans @d4veCAT
Jan 15 · 8 min read
David Sassoli and Antonio Tajani

“The rule of law or the rule of lawfare? Which one will prevail? If it is the latter, the very foundations of the European Union will be shaken. The damage may be irreparable. The Catalan conflict is now a very European affair”

By Dave Evans

When former Catalan president Carles Puigdemont and former Catalan health minister Toní Comin finally took up their seats in the European Parliament on Monday, more than seven months after they were elected as MEPs, many Catalans, especially their voters, felt a mixture of relief and joy. Thanks to the legal team of Gonzalo Boye, a lawyer with far more strategic vision than most of the current crop of politicians in Catalonia, Messrs Puigdemont and Comín achieved on Monday what had seemed impossible on 2 July, when the opening session of the new European Parliament was held in Strasbourg following the May election. On that July day, Mr Boye advised his clients to stay on the German side of the Rhine border, tantalisingly close to the Parliament building, as rumours emerged of a possible Spanish-French joint police operation to detain the newly elected MEPs if they dared to cross over to the institution to which they had been elected by more than a million voters, and spirit them back to Spain, circumventing European extradition proceedings via a special bilateral agreement theoretically designed to combat irregular immigration. The two Catalans eventually headed back to Brussels, where their legal team worked patiently and diligently to achieve the result we saw on Monday, which is only one element of a much wider strategy aimed at forcing European institutions and courts, whether they like it or not, to intervene in the conflict between Catalonia and Spain in order to achieve a democratic solution.

This strategy is what lay behind the decision of Carles Puigdemont, Toní Comín and various other Catalan leaders to go into exile in Belgium (and Scotland, in the case of Clara Ponsatí) at the end of October 2017. Monday’s events vindicated this decision, as made abundantly clear by the unconcealed frustration and fury of several Spanish MEPs at having to share the Strasbourg chamber with the two Catalan politicians. Spain has been desperate to contain the Catalan conflict, for it to be considered an “internal matter” by Europe, and until very recently it could count on important allies in the highest echelons of the EU leadership to help it maintain this charade. But Juncker, Tusk and Tajani have all left their posts now and, although the jury is still out on their successors’ political mettle and willingness to address the democratic demands of the Catalan independence movement, the indications are that relentless Spanish pressure and bullying have taken their toll over the last two years or so in Brussels, Strasbourg and Luxembourg, stretching good will and loyalties to breaking point.

If left to its own devices, the new Spanish government will pay no more than lip service to finding a real political solution to the Catalan conflict. This much was obvious in Pedro Sánchez’s investiture speech last week, in which he stated his intent to hold discussions with ERC (Esquerra Republicana de Catalunya — The Republican Left of Catalonia) on a political solution within the bounds of the Spanish Constitution. In the so-called “table of dialogue” agreement signed by Sánchez’s PSOE and ERC prior to the investiture debate, there was no mention of the political solution to the conflict having to remain within the bounds of the Spanish Constitution, yet here was the condition spelled out in this all-important speech. Mr Sánchez believes that there is no room in the Spanish Constitution for the exercise of the right to self-determination and he was already ruling out this possibility in his investiture speech, even before securing the political support he needed from ERC. Although ERC later claimed that it would hold Mr Sánchez to the commitments listed in the signed document regardless of the contents of his investiture speech, it is clear that the Spanish government has no intention of discussing the holding of a new referendum on the independence of Catalonia. After all, Pedro Sánchez is the man who only a few months ago was stridently proclaiming on the campaign trail that “No means no” when it comes to allowing Catalans to decide their own political future.

However, amid the smoke and mirrors of talks about talks, it was full steam ahead for the strategy that the Spanish State has employed in practice in order to deal with the Catalan independence movement: the rule of lawfare. Repression thinly disguised as justice. Leading the line in these latest developments was Spain’s now notorious Central Electoral Commission, an administrative body comprising eight Supreme Court judges and five university professors (experts in law, political science or sociology, nominated by political parties). Although this body is tasked exclusively with supervising electoral processes in Spain, it took it upon itself last week to strip Catalan President Quim Torra of his status as Member of the Catalan Parliament, raising a serious question mark over his right to continue as Catalan President, and to strip former Catalan Vice-President Oriol Junqueras of his status as MEP.

The decision regarding Mr Torra came after his trial of 18 November in the High Court of Justice of Catalonia, in which he was found guilty of disobedience for failing to timely remove from public buildings some yellow ribbons and a banner demanding the release of Catalan political prisoners. The court banned him from public office for 18 months and fined him €30,000. The judgement could not be executed until Mr Torra’s appeal was heard by Spain’s Supreme Court but, following demands by the Spanish right and far right (PP, Ciudadanos and Vox), the Central Electoral Commission agreed by seven votes to six to strip Mr Torra of his status as MP immediately, without waiting for the Supreme Court appeal. This decision was later endorsed by the Supreme Court itself.

Mr Torra has been a thorn in the side of the Spanish State. It was not a case of fourth time lucky for Spain after it had successfully, and undemocratically, prevented three other presidential candidates from taking up office. Carles Puigdemont had been the first choice for Catalan President after the pro-independence parties secured a heroic majority in the Catalan election of 21 December 2017. This election had been called by Mariano Rajoy, usurping the sovereignty of the Catalan Parliament, and the Spanish nationalists, led by Inés Arrimadas of Ciudadanos on this occasion, were confident of wresting control of the parliament from the pro-independence parties, many of whose candidates were already in prison or exile and whose campaigning was therefore significantly hobbled. Plan A did not work out for the Spanish Government. A new pro-independence majority was formed and Plan B had to be implemented. This consisted of not allowing the Catalan Parliament to vote for the candidate of its choice. Mr Puigdemont was not allowed to be voted in as president remotely from exile in Brussels. Although the Catalan Parliament passed a law making this remote investiture possible, the Spanish Government lodged an appeal before the Constitutional Court and the law was suspended. It was not until 15 July 2019 that the Constitutional Court ruled on this appeal. And what was its decision? The law was legitimate: by virtue of the Catalan Statute of Autonomy, the Catalan Parliament was entitled to establish the regulations of its own functioning. Appeal dismissed. But the damage had already been done, the result desired by the Spanish State had already been achieved: Carles Puigdemont was not invested as Catalan President. The second presidential candidate, Jordi Sànchez, was behind bars in Madrid’s Soto del Real prison. Judge Pablo Llarena refused to grant him permission to attend an investiture debate in the Catalan Parliament. The third candidate, Jordi Turull got as far as attending his investiture debate, in which he lost the first vote. Before the second vote could take place, which presumably he would have won, he too was behind bars in Madrid’s Soto del Real prison and it was time to propose a fourth candidate: Quim Torra. But Mr Torra has not been to the Spanish State’s liking either and he has been subjected to constant abuse, including by Pedro Sánchez, throughout his time in office, leading right up to his show trial of November 2019 and the current attempt to remove him from office, which is being combated by the Catalan Parliament, which on this occasion has decided to defend its sovereignty more robustly. It is all too clear that what the Spanish State has not been able to achieve at the ballot box, it has attempted to achieve via the courts and even via a merely administrative (although highly judicialized) body, namely the Central Electoral Commission. This is not the rule of law but rather the rule of lawfare.

The case of Oriol Junqueras is equally startling. Moreover, it has an added European dimension that may prove to be the undoing of the Spanish State’s rule of lawfare strategy. The ins and outs of the case have been discussed widely over the last few weeks, including elsewhere on this blog, following the judgement of the Court of Justice of the European Union (CJEU) of 19 December that recognised Mr Junqueras’ status as MEP. The European Parliament also recognised this status, until its president, David Sassoli, made a volte-face last Friday, stating that the Parliament no longer recognised Mr Junqueras as an MEP because a final judgement had been issued against him by the supreme court of a Member State. The Spanish Supreme Court had informed the European Parliament that it did not consider Mr Junqueras an MEP due to its final judgement of 14 October. It is the custom of the European Parliament to unquestioningly accept such final judgements. This custom may change.

The decision of the European Parliament is clearly unacceptable. The only way that Spain’s Supreme Court could issue a final judgement against Oriol Junqueras was by not waiting for the preliminary ruling of the CJEU, a ruling which the Supreme Court itself had requested. If the Supreme Court had waited for this preliminary ruling (the entire purpose of the ruling being to clear up the Supreme Court’s doubts before it issued its own judgement), then it would have known that it was not in a position to issue any judgment against Mr Junqueras and that, instead, it would have to ask the European Parliament to waive his immunity in order to continue proceedings against him. Mr Junqueras has not been subjected to the rule of law but rather to the rule of lawfare. An appeal before the General Court of the European Union (EGC) against Mr Sassoli’s decision is inevitable, if the European Parliament itself does not overrule the decision of its president. The EGC is a constituent court of the CJEU. Does the CJEU feel that its judgement has been complied with by Spain and by the European Parliament? The press release by the court’s president tweeted this week offers some clues:

Those responses — and I am thinking here in particular of those which seek to preserve the rule of law and protect fundamental rights — are a responsibility shared by all, Member States and EU institutions.

In this context the Commission has a major role to play as ‘guardian of the Treaties’, which enables it to seek from the Court a declaration that a Member State has failed to fulfil obligations or the imposition of penalties in the event of non-compliance with a judgement of the Court.”

The rule of law or the rule of lawfare? Which one will prevail? If it is the latter, the very foundations of the European Union will be shaken. The damage may be irreparable. The Catalan conflict is now a very European affair.

My blog devoted to Catalan and Spanish politics. Articles and translations.

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