After the federal election: the dangers, and the challenges, that lie ahead

By Pierre Beaudet and Richard Fidler

This article is an English adaptation of the article “Péril en la demeure” published October 23 in the on-line journal Presse-toi à gauche. My co-author Pierre Beaudet is an editor of Nouveaux Cahiers du Socialisme and currently teaches international development at the University of Quebec Outaouais campus in Gatineau. -- Richard Fidler

It is still early to interpret fully the results of Canada’s October 21 federal election. But behind the immediate results some trends are clear.

Canada’s Federal Election, 2019
	2019			2015
Party	Seats	Votes	% of vote	Seats	Votes	% of vote
Liberal	157	5,915,950	33.1	184	6,930,136	39.5
Conservative	121	6,155,662	34.4	99	5,600,496	31.9
NDP	24	2,849,214	15.9	44	3,461,262	19.7
BQ*	32	1,376,135	7.7	10	818,652	4.7
Greens	3	1,162,361	6.5	1	605,864	3.4

* Quebec only, where the party took 32.5% of the vote.

The “right-wing wave” the Conservatives hoped for proved to be little more than a ripple. In Ontario, and in particular the immense metropolitan area of Toronto, the fear campaign mounted by the Liberals was effective. Premier Doug Ford was the perfect scarecrow. The “Ford Nation” of the angry suburbanites had little presence. In Western Canada there was little change. The Tory super-majorities in Prairie ridings did little to increase that party’s overall representation in Parliament. While they picked up a few seats in the Atlantic provinces, the Liberals maintained their overwhelming majority there. In Quebec, as expected, the Tories made no headway, winning only 8 seats. Their far-right offshoot, the climate-change denier Maxime Bernier was defeated and his People’s Party of Canada went nowhere, polling less than 2%.

An initial conclusion: Canada is not fertile ground, at least for now, for the kind of ultra-reactionary wave that we have been seeing in the United States, England, Germany and elsewhere. Notwithstanding many nuances, this is positive.

The Liberals saved their day despite the serious mauling delivered to Justin Trudeau’s cultivated image of a young and dynamic modernizer. Now deprived of a parliamentary majority, however, it was a victory by default, a rejection of the Conservatives especially in Ontario. The Liberals’ achievements since their election in 2015 were scarce. Their major promises — on the environment, a “feminist” foreign policy, reconciliation with the First Nations, etc. — were revealed as little more than fine words, far short of the changes that are so necessary. The Trudeau government’s discourse has shifted from that of Stephen Harper, particularly in relation to the Indigenous, but in reality there has been little change.

Economically, Canada’s relative prosperity is largely a spillover from the apparent but ominously fragile boom in the United States, where Trump has simply postponed the toxic effects of his economic policies; almost everyone predicts an imminent rebound of the great recession, which will hit the Canadian economy very hard, given how closely anchored it is to Wall Street’s — and reaffirmed in the new NAFTA successor deal, yet to be ratified.

As expected, the New Democratic Party took a hiding, especially in Quebec. Only the most naïve could have thought that Jagmeet Singh, with his skilful evasions, could save things for a party that under Thomas Mulcair’s stewardship had become little more than a milder version of the Liberals. The party had little credibility in Quebec, despite the last-minute attempts taken by deputy leader Alexandre Boulerice to plug the holes in this hull of a sinking ship. With only Boulerice to represent it from Quebec, the NDP is now back to where it was before 2011, when it swept up 59 seats in the province in the “orange wave.”

The Bloc québécois is clearly the big winner, taking enough seats from both the NDP and Liberals to limit the latter to managing a minority government for the next period. The Bloc and its leader, Yves-François Blanchet, skilfully courted the nationalist vote that tilted in the Quebec elections last year toward the Coalition Avenir Québec (CAQ); the BQ’s rise from 10 to 32 seats has no doubt also given some renewed hopes to what remains of the Parti québécois.

The Bloc’s gains hint at the possible formation of a new nationalist alliance linking the CAQ and PQ around defense of Quebec, not as a project of emancipation but rather as a defense of identity and provincial autonomy. Since this is Quebec, and not Alberta or France, this defensive nationalism does not assume a far-right expression (although many progressives in English Canada do not understand this). In the last analysis, Blanchet adopted the centre-left discourse that was long associated with the PQ around defense of the environment and social programs, because in Quebec those are objectives cherished by a sociological majority.

Now, allow us to make some forecasts.

The Liberals will govern with the support, both implicit and explicit, of the Conservatives. On most essential issues the two major parties have much the same vision, which corresponds to that of “Canada Inc.” The shift in recent years toward a Toronto-Calgary financial and resource axis has disrupted the postwar historic bloc with the unions and rising middle classes — centred in industrial Ontario and a rising Quebec — that spawned the limited social welfare provisions now under increasing attack.

The differences between these parties pertain more to how this is to be done. A faction of the Conservatives, led by Jason Kenney, favours harsh and brutal cutbacks and restrictions on critics, while placing the blame on the “grasping” Quebecers living off equalization grants and the profits from the tar sands. It’s a rational project, but in the present circumstances it lacks credibility. The Liberals do not differ radically, but prefer a “war of position” that weakens the provinces (especially Quebec) through a political and economic centralization that facilitates the turn in Canada’s political economy. Neither party, however won much more than a third of the votes cast. Although the Conservatives’ total vote was marginally higher than the Liberals’, both Trudeau and Tory leader Andrew Scheer emerge weaker politically.

In view of the election results the now-minority Liberal government may well be inclined to curry Tory support on major projects, for example by speeding up its planned expansion of fossil-fuel production and export.

As for the New Democratic Party, the election marks a further step in its long-term stagnation, interrupted in the past only by a few very fleeting advances as in the 2011 “orange wave.” It seems unable to reinvent itself, to offer a credible alternative to the dominant projects of Canadian capital. Although public opinion polling identified climate change as a major concern, the NDP spoke with a forked tongue on some major environmental issues: for example, endorsing the B.C. NDP government’s massive LNG and natural gas pipeline project while opposing a similar project in Quebec. After some hesitation Singh came out in opposition to the Liberals’ Trans Mountain bitumen pipeline expansion, but the party was hobbled by the conflict between the B.C. government, which opposed TMX, and its Alberta NDP counterpart which had championed it while in government.

On Quebec, the party has ultimately failed to engage with the progressive nationalist consciousness of the Québécois. Its major attempt, the 2006 Sherbrooke Declaration, endorsed Quebec’s right to national self-determination but said its national character could be “expressed in the context of the [existing] Canadian federation.” Underlying its ambiguities is the party’s inability to incorporate within its conception of state power the plurinational reality of the Canadian social formation and the ways in which that reality is denied and violated through the constitutional regime established in 1867. Moreover, the NDP (like much of the left) has never understood the role of the federal state as the mainstay of the domination and class interests of Canadian Capital, including its subaltern Quebec component.

Is it time — once again — to declare “the party is over” and find ways to begin anew in building a broad anticapitalist left? Easier said than done. At present the Canadian left is dispersed and fragmented and seems more inclined to focus on organizing and campaigning around particular issues (environment, feminism, Indigenous solidarity, etc.) rather than attempting to build a united radical left alternative. The positive experience of progressive regroupment in the building of Québec solidaire, from which many lessons can be learned, is largely unknown in Canada Outside Quebec.

What can the Bloc québécois really achieve in Ottawa? It can exert some sort of pressure on the minority government, but its means are limited. Meanwhile, the big winner in the election is François Legault, who emerges with his soft nationalist agenda reinforced, giving him greater ability to confront the unions and the environmental coalitions. And he is certain to take advantage of the foreseeable neoliberal alignment of federal Liberals and Tories to accelerate the turn to austerity already heralded.

However, we must be cautious in our predictions, as there are many contingencies that remain unclear, including the next resumption of recession in the U.S.

A few thoughts, perhaps, on what all this may mean for the Quebec left. Throughout the federal campaign Québec solidaire, which as an independentist party does not participate in federal elections, kept silent, even in the face of the explosive debate among the other parties over what to do if anything about the Legault government’s Bill 21. A major reason was the QS leadership’s fear of reigniting the difficult debate in the party over identity and “values” sparked most recently by the CAQ’s Bill 21, a debate that left behind some bitter feelings. The firm and positive position adopted at the QS national council meeting in April did not meet with anything like universal acceptance, even among the party membership.

We agree with the decision taken by a large majority of the council members to oppose Bill 21, on the grounds that the bill’s discrimination against faith communities and genders that identify their personal religious beliefs through various forms of clothing (e.g. the Muslim hijab) is inconsistent with true laïcité or state secularism, which registers state neutrality toward religion. But what the QS debate may not have addressed adequately is the insecurity that continues to plague many Québécois — especially in regions outside the Montréal metropolis where very few if any Muslim women or other ethnic minorities are encountered — over their national culture and language, in short identity, in a continent and a state that are overwhelmingly non-Francophone and predominantly English-speaking. The CAQ, the Bloc and the PQ have effectively wielded this insecurity to begin forging a new right-wing nationalist alignment in which Bill 21 is a key element, camouflaging its divisive xenophobic content behind opposition to the “multiculturalism” program originally manufactured by Trudeau Senior as a means to reduce Quebec’s foundational national identity to just another residual ethnic identity in the Canadian popular consciousness.

Québec solidaire still needs to find ways to address these underlying insecurities by deepening our inclusive and emancipatory project to include a stronger defense of Québécois culture and language. Our project, which is already characterized by its commitment to ecology, feminism and altermondialisme, could benefit from some additional explorations. We cannot be indifferent to the gap between Montréal and the other university towns where QS is strongest, and the rest of the nation in which the working-class and popular majority are likewise seeking a better life, in dignity. The point of departure, as our sympathizers in the regions often remind us, is that our project cannot thrive without the creation of a new political space recognizing French as the common language, and deeply attached to democratic traditions — a true popular sovereignty that comes from the people and is deeply imbued with a sense of social solidarity. A project that is inclusive, democratic, secular (laïc) and popular.

We can take inspiration from Scotland, where the rising movement for independence is strongly supported by the people referred to as “immigrants” even if they have lived there for two or three generations. And why is that? Because a new left in recent years has redefined the project as a call to transform the society, to break from the neoliberal prison of the British state, and to promote the interests of the great majority of Scots in their diversity and their utopias.

And there is another task awaiting us, one that is equally monumental. We cannot change Quebec without changing Canada. We must at all costs avoid the terrible error of the right-wing Catalan independentism, which from the outset ruled out the forging of an alliance or at least closer links with the left in the Spanish state. Yes, we know this is not Spain and there is no Podemos or anything resembling it west of the Ottawa River. The Canadian left, such as it is, will some day have to make its own “revolution in the revolution,” incorporating in its program, among other things, a plurinational conception of the Canadian social formation.

Will that be done in or through the NDP? Can it begin with a totally new project? Will it proceed from the local or municipal level, progressing to a higher level? Those are some of the questions confronting our Canadian comrades. Perhaps we can help them, even if only minimally, by waging alongside them the struggles that will develop against climate catastrophe, the austerity and selective repression that awaits us with the next federal government. And to put at least a few grains of sand in the alignment of the Canadian state with the neighboring Empire and its endless wars.

After the federal election: the dangers, and the challenges, that lie ahead

By Pierre Beaudet and Richard Fidler

This article is an English adaptation of the article “Péril en la demeure” published October 23 in the on-line journal Presse-toi à gauche. My co-author Pierre Beaudet is an editor of Nouveaux Cahiers du Socialisme and currently teaches international development at the University of Quebec Outaouais campus in Gatineau. -- Richard Fidler

It is still early to interpret fully the results of Canada’s October 21 federal election. But behind the immediate results some trends are clear.

Canada’s Federal Election, 2019
	2019			2015
Party	Seats	Votes	% of vote	Seats	Votes	% of vote
Liberal	157	5,915,950	33.1	184	6,930,136	39.5
Conservative	121	6,155,662	34.4	99	5,600,496	31.9
NDP	24	2,849,214	15.9	44	3,461,262	19.7
BQ*	32	1,376,135	7.7	10	818,652	4.7
Greens	3	1,162,361	6.5	1	605,864	3.4

* Quebec only, where the party took 32.5% of the vote.

The “right-wing wave” the Conservatives hoped for proved to be little more than a ripple. In Ontario, and in particular the immense metropolitan area of Toronto, the fear campaign mounted by the Liberals was effective. Premier Doug Ford was the perfect scarecrow. The “Ford Nation” of the angry suburbanites had little presence. In Western Canada there was little change. The Tory super-majorities in Prairie ridings did little to increase that party’s overall representation in Parliament. While they picked up a few seats in the Atlantic provinces, the Liberals maintained their overwhelming majority there. In Quebec, as expected, the Tories made no headway, winning only 8 seats. Their far-right offshoot, the climate-change denier Maxime Bernier was defeated and his People’s Party of Canada went nowhere, polling less than 2%.

An initial conclusion: Canada is not fertile ground, at least for now, for the kind of ultra-reactionary wave that we have been seeing in the United States, England, Germany and elsewhere. Notwithstanding many nuances, this is positive.

The Liberals saved their day despite the serious mauling delivered to Justin Trudeau’s cultivated image of a young and dynamic modernizer. Now deprived of a parliamentary majority, however, it was a victory by default, a rejection of the Conservatives especially in Ontario. The Liberals’ achievements since their election in 2015 were scarce. Their major promises — on the environment, a “feminist” foreign policy, reconciliation with the First Nations, etc. — were revealed as little more than fine words, far short of the changes that are so necessary. The Trudeau government’s discourse has shifted from that of Stephen Harper, particularly in relation to the Indigenous, but in reality there has been little change.

Economically, Canada’s relative prosperity is largely a spillover from the apparent but ominously fragile boom in the United States, where Trump has simply postponed the toxic effects of his economic policies; almost everyone predicts an imminent rebound of the great recession, which will hit the Canadian economy very hard, given how closely anchored it is to Wall Street’s — and reaffirmed in the new NAFTA successor deal, yet to be ratified.

As expected, the New Democratic Party took a hiding, especially in Quebec. Only the most naïve could have thought that Jagmeet Singh, with his skilful evasions, could save things for a party that under Thomas Mulcair’s stewardship had become little more than a milder version of the Liberals. The party had little credibility in Quebec, despite the last-minute attempts taken by deputy leader Alexandre Boulerice to plug the holes in this hull of a sinking ship. With only Boulerice to represent it from Quebec, the NDP is now back to where it was before 2011, when it swept up 59 seats in the province in the “orange wave.”

The Bloc québécois is clearly the big winner, taking enough seats from both the NDP and Liberals to limit the latter to managing a minority government for the next period. The Bloc and its leader, Yves-François Blanchet, skilfully courted the nationalist vote that tilted in the Quebec elections last year toward the Coalition Avenir Québec (CAQ); the BQ’s rise from 10 to 32 seats has no doubt also given some renewed hopes to what remains of the Parti québécois.

The Bloc’s gains hint at the possible formation of a new nationalist alliance linking the CAQ and PQ around defense of Quebec, not as a project of emancipation but rather as a defense of identity and provincial autonomy. Since this is Quebec, and not Alberta or France, this defensive nationalism does not assume a far-right expression (although many progressives in English Canada do not understand this). In the last analysis, Blanchet adopted the centre-left discourse that was long associated with the PQ around defense of the environment and social programs, because in Quebec those are objectives cherished by a sociological majority.

Now, allow us to make some forecasts.

The Liberals will govern with the support, both implicit and explicit, of the Conservatives. On most essential issues the two major parties have much the same vision, which corresponds to that of “Canada Inc.” The shift in recent years toward a Toronto-Calgary financial and resource axis has disrupted the postwar historic bloc with the unions and rising middle classes — centred in industrial Ontario and a rising Quebec — that spawned the limited social welfare provisions now under increasing attack.

The differences between these parties pertain more to how this is to be done. A faction of the Conservatives, led by Jason Kenney, favours harsh and brutal cutbacks and restrictions on critics, while placing the blame on the “grasping” Quebecers living off equalization grants and the profits from the tar sands. It’s a rational project, but in the present circumstances it lacks credibility. The Liberals do not differ radically, but prefer a “war of position” that weakens the provinces (especially Quebec) through a political and economic centralization that facilitates the turn in Canada’s political economy. Neither party, however won much more than a third of the votes cast. Although the Conservatives’ total vote was marginally higher than the Liberals’, both Trudeau and Tory leader Andrew Scheer emerge weaker politically.

In view of the election results the now-minority Liberal government may well be inclined to curry Tory support on major projects, for example by speeding up its planned expansion of fossil-fuel production and export.

As for the New Democratic Party, the election marks a further step in its long-term stagnation, interrupted in the past only by a few very fleeting advances as in the 2011 “orange wave.” It seems unable to reinvent itself, to offer a credible alternative to the dominant projects of Canadian capital. Although public opinion polling identified climate change as a major concern, the NDP spoke with a forked tongue on some major environmental issues: for example, endorsing the B.C. NDP government’s massive LNG and natural gas pipeline project while opposing a similar project in Quebec. After some hesitation Singh came out in opposition to the Liberals’ Trans Mountain bitumen pipeline expansion, but the party was hobbled by the conflict between the B.C. government, which opposed TMX, and its Alberta NDP counterpart which had championed it while in government.

On Quebec, the party has ultimately failed to engage with the progressive nationalist consciousness of the Québécois. Its major attempt, the 2006 Sherbrooke Declaration, endorsed Quebec’s right to national self-determination but said its national character could be “expressed in the context of the [existing] Canadian federation.” Underlying its ambiguities is the party’s inability to incorporate within its conception of state power the plurinational reality of the Canadian social formation and the ways in which that reality is denied and violated through the constitutional regime established in 1867. Moreover, the NDP (like much of the left) has never understood the role of the federal state as the mainstay of the domination and class interests of Canadian Capital, including its subaltern Quebec component.

Is it time — once again — to declare “the party is over” and find ways to begin anew in building a broad anticapitalist left? Easier said than done. At present the Canadian left is dispersed and fragmented and seems more inclined to focus on organizing and campaigning around particular issues (environment, feminism, Indigenous solidarity, etc.) rather than attempting to build a united radical left alternative. The positive experience of progressive regroupment in the building of Québec solidaire, from which many lessons can be learned, is largely unknown in Canada Outside Quebec.

What can the Bloc québécois really achieve in Ottawa? It can exert some sort of pressure on the minority government, but its means are limited. Meanwhile, the big winner in the election is François Legault, who emerges with his soft nationalist agenda reinforced, giving him greater ability to confront the unions and the environmental coalitions. And he is certain to take advantage of the foreseeable neoliberal alignment of federal Liberals and Tories to accelerate the turn to austerity already heralded.

However, we must be cautious in our predictions, as there are many contingencies that remain unclear, including the next resumption of recession in the U.S.

A few thoughts, perhaps, on what all this may mean for the Quebec left. Throughout the federal campaign Québec solidaire, which as an independentist party does not participate in federal elections, kept silent, even in the face of the explosive debate among the other parties over what to do if anything about the Legault government’s Bill 21. A major reason was the QS leadership’s fear of reigniting the difficult debate in the party over identity and “values” sparked most recently by the CAQ’s Bill 21, a debate that left behind some bitter feelings. The firm and positive position adopted at the QS national council meeting in April did not meet with anything like universal acceptance, even among the party membership.

We agree with the decision taken by a large majority of the council members to oppose Bill 21, on the grounds that the bill’s discrimination against faith communities and genders that identify their personal religious beliefs through various forms of clothing (e.g. the Muslim hijab) is inconsistent with true laïcité or state secularism, which registers state neutrality toward religion. But what the QS debate may not have addressed adequately is the insecurity that continues to plague many Québécois — especially in regions outside the Montréal metropolis where very few if any Muslim women or other ethnic minorities are encountered — over their national culture and language, in short identity, in a continent and a state that are overwhelmingly non-Francophone and predominantly English-speaking. The CAQ, the Bloc and the PQ have effectively wielded this insecurity to begin forging a new right-wing nationalist alignment in which Bill 21 is a key element, camouflaging its divisive xenophobic content behind opposition to the “multiculturalism” program originally manufactured by Trudeau Senior as a means to reduce Quebec’s foundational national identity to just another residual ethnic identity in the Canadian popular consciousness.

Québec solidaire still needs to find ways to address these underlying insecurities by deepening our inclusive and emancipatory project to include a stronger defense of Québécois culture and language. Our project, which is already characterized by its commitment to ecology, feminism and altermondialisme, could benefit from some additional explorations. We cannot be indifferent to the gap between Montréal and the other university towns where QS is strongest, and the rest of the nation in which the working-class and popular majority are likewise seeking a better life, in dignity. The point of departure, as our sympathizers in the regions often remind us, is that our project cannot thrive without the creation of a new political space recognizing French as the common language, and deeply attached to democratic traditions — a true popular sovereignty that comes from the people and is deeply imbued with a sense of social solidarity. A project that is inclusive, democratic, secular (laïc) and popular.

We can take inspiration from Scotland, where the rising movement for independence is strongly supported by the people referred to as “immigrants” even if they have lived there for two or three generations. And why is that? Because a new left in recent years has redefined the project as a call to transform the society, to break from the neoliberal prison of the British state, and to promote the interests of the great majority of Scots in their diversity and their utopias.

And there is another task awaiting us, one that is equally monumental. We cannot change Quebec without changing Canada. We must at all costs avoid the terrible error of the right-wing Catalan independentism, which from the outset ruled out the forging of an alliance or at least closer links with the left in the Spanish state. Yes, we know this is not Spain and there is no Podemos or anything resembling it west of the Ottawa River. The Canadian left, such as it is, will some day have to make its own “revolution in the revolution,” incorporating in its program, among other things, a plurinational conception of the Canadian social formation.

Will that be done in or through the NDP? Can it begin with a totally new project? Will it proceed from the local or municipal level, progressing to a higher level? Those are some of the questions confronting our Canadian comrades. Perhaps we can help them, even if only minimally, by waging alongside them the struggles that will develop against climate catastrophe, the austerity and selective repression that awaits us with the next federal government. And to put at least a few grains of sand in the alignment of the Canadian state with the neighboring Empire and its endless wars.

Catalan independence leaders sentenced to heavy jail terms

The savage sentences handed down by Spain’s Supreme Court against nine Catalan independence leaders have been denounced by political leaders in Quebec, including Premier François Legault. In the forefront are the deputies of Québec solidaire, who will present a motion this week in the National Assembly condemning the repression and reaffirming the right of self-determination of peoples.

“Jailing elected members because they exercised their democratic duty does not make good sense,” said QS deputy co-leader Manon Massé. She was responding to a letter sent to QS by the president of the Catalan parliament asking them to find a way to help in resolving the political conflict in Spain. Massé, who had visited Catalonia in 2017 at the time of the independence vote, testified by videoconference in April during the trial of Jordi Cuixart, leader of one of the social movements supporting independence.

Campaigning in Canada’s federal election, Bloc Québécois leader Yves François Blanchet called on the leaders of the other parties, starting with Prime Minister Justin Trudeau, to denounce the heavy sentences imposed on the Catalan leaders. Trudeau refused, arguing that it involved an internal Spanish affair. He invoked the same neutrality in 2017 when Spanish police beat Catalan voters who sought to exercise their right to vote. At the time Jagmeet Singh, newly elected leader of the New Democratic Party, denounced Trudeau, saying the right to self-determination was one of the most important rights.

In the article below, Dick Nichols reports on the massive protests that have erupted in Catalonia in response to the court sentences. Nichols is the Barcelona-based European correspondent of Green Left Weekly, from which the article is reproduced, with thanks.

Nichols’ article is followed by extensive excerpts from an article by Viento Sur editor Jaime Pastor critically dissecting the meaning of the Spanish court’s judgment, and in particular the parts in which the court attempts to distinguish the Catalan case from those of other national minority peoples in states of the geographical North, starting with Quebec. My translation from the Spanish.

– Richard Fidler

* * *

Vindictive sentence in Catalan leaders’ trial unleashes tsunami of protest

By Dick Nichols, Barcelona, October 18, 2019

The gap between the 75%–80% of Catalans who uphold their country’s right to self-determination, and the Spanish elites and parts of Spanish society that do not want to know anything about it, was already very wide before October 14.

But on that day, when the Spanish Supreme Court condemned nine Catalan political and social movement leaders to a total of 99.5 years jail, it most likely became unbridgeable.

Following the sentence of the leaders for their role in the October 1, 2017 independence referendum, popular outrage in Catalonia immediately exploded in mass protests involving tens of thousands of people.

They occupied Barcelona airport, imposed road blocks on major highways, demonstrated in huge numbers outside Spanish government offices and began “Marches for Freedom” on Barcelona from five provincial cities.

Every imaginable Catalan social and sporting organisation, from Barcelona Football Club to chess associations, has issued statements condemning the sentences.

On the nights of October 15–16, police and small groups engaged in running battles in central Barcelona, as smoke rose from burning rubbish bins.

On October 16, Spanish Socialist Workers’ Party (PSOE) acting Prime Minister Pedro Sánchez appeared on television to warn that security forces would act “firmly, serenely and proportionately” in the face of violence.

To his right, People’s Party (PP) leader Pablo Casado demanded the declaration of a state of emergency in Catalonia, while Citizens’ leader Albert Rivera called for an end to Catalan self-rule under article 155 of the Spanish constitution.

One of the main instruments coordinating these responses is the Democratic Tsunami platform, anonymously run by activists from the October 1 referendum, and coordinated via a Telegram channel that, at the time of writing, had attracted 300,000 subscribers.

Punishment without crime

The unanimous verdict of the seven Supreme Court judges that set off this still expanding wave of protest was that nine Catalan leaders — seven former ministers and social movement leaders Jordi Sànchez and Jordi Cuixart — were guilty of “sedition” in preparing the October 1 referendum.

For this 18th century crime, long deleted from the penal codes of many other European states, they were sentenced to jail terms ranging from 9 to 13 years.

The harshest sentence was handed out to former Catalan vice-president Oriol Junqueras as “leader of the sedition”. Former ministers Raül Romeva (foreign affairs), Dolors Bassa (social welfare) and Jordi Turull (minister of state) came next with 12 years: along with Junqueras they were also found guilty of “embezzlement”.

Former Catalan parliament speaker Carme Forcadell incurred 11.5 years jail for allowing the chamber to vote on the referendum’s enabling law, after being instructed by the Spanish Constitutional Court not to do so.

The “sedition” of former Catalan interior minister Joaquim Forn (11.5 years) consisted in undermining the ability of the Catalan police to deliver and enforce Spanish state court orders.

Former territory minister Josep Rull was found guilty of denying a Spanish Civil Guard ship mooring facilities and of making public buildings available as voting centres.

As for Òmnium Cultural president Cuixart and former Catalan National Assembly president Sànchez, their “sedition” was proven by the fact that they had called demonstrations against Civil Guard searches and urged people to defend voting centres against police and Civil Guard attempts to impound ballot boxes.

Along with these nine, who have already been held in preventive detention for up to two years, the court found former ministers Carles Mundó (attorney-general), Santi Vila (business) and Meritxell Borras (education) guilty of “disobedience”, fining each €60,000 and banning them from standing for public office for 18 months.

The nine jailed leaders have been banned from standing for public office for the term of their sentences.

Why this verdict?

The verdict is the predictable result of the pressures operating on the Supreme Court and its chief judge Manuel Marchena.

The chief pressure was for the trial to produce an exemplary punishment of the Catalan leaders. They had humiliated the Spanish state by successfully organising a unilateral independence referendum after 18 failed attempts to negotiate a Scottish-style referendum with successive Spanish governments.

A measure of the viciousness of the sentences is to compare them to those arising from the failed 1981 coup attempt. The average punishment for the military and Civil Guards who tried to reimpose the Francisco Franco dictatorship then was six years jail: the sentences of the Catalan leaders average 8.3 years.

The Supreme Court judges were doing the work set out for them by the previous PP government of Mariano Rajoy.

According to a leaked WhatsApp message by PP Senate spokesperson Ignacio Cosidó, its Second Chamber, which heard the case, was controlled “via the back door”.

There was no way its judges, even their “progressive” minority, were going to find the Catalan leaders innocent, or guilty only of disobedience (which carries no jail sentence).

There was no ‘rebellion’

However, the heavy sentences the court was always going to impose have to be defensible in law, not only within Spain but especially before a European Court of Human Rights — which in 2018 upheld nine out of ten appeals against Spanish court decisions.

This pressure to find a plausible legal foundation for their decision meant the judges had to discard the “rebellion” charge against the Catalan leaders.

This indictment was originally brought by the investigating magistrate Pablo Llarena and was backed by the Spanish prosecutor-general’s office and the “popular prosecution”, the ultra-right party Vox.

(The “popular prosecution” is a Spanish institution originally designed to allow the representation of community or public interest.)

Dropping the charge of “rebellion”, which a majority of Spanish jurists had already declared inapplicable, was also probably the price of a unanimous verdict between judges of different political temperaments.

It was also a political imperative. It will help Pedro Sánchez maintain the myth that Spain is a “law-governed state” with an independent judiciary and it will also help the European Union and its member states, fearful of any Catalan threat to the EU status quo, sustain the same fiction.

In the days after the verdict, spokespeople for the European Commission and the British government robotically repeated the line from Madrid.

Caught in contradiction

The dropping of “rebellion” comes at a price, however, because the whole Spanish-patriotic view of the October 1 referendum, from King Philip down, is that it was a deliberate, rebellious assault on the Constitution.

Sensitive to the angst their appeal-proofed verdict would cause, the judges devoted about 200 pages of the 493-page judgement to arguments against the “rebellion”.

Yet, in adopting the “sedition theory”, the judges fall into a painful contradiction.

Their decision says, for example, that October 1 did not involve “preconceived, deliberate and functional” violence aimed at achieving Catalonia’s separation from the Spanish state, but was rather an attempt to pressure it into negotiations.

“The over-excited citizens who believed that the positive result of the so-called referendum would lead to the hoped-for horizon of a sovereign republic were unaware that the right to decide had changed into an atypical right to bring pressure.”

But if that argument is valid against “rebellion”, how is it not also valid against “sedition”? The only difference in Spanish law is that “rebellion” is a crime against the constitution and “sedition” a crime against public order.

The judges’ answer was to smother the contradiction in lurid fictional accounts of the events of 2017. These are based on the well-rehearsed evidence of Spanish National Police and Civil Guard officers, whom Marchena “spared” from defence cross-examination, backed by visual evidence, during the trial.

In their decision, it is the huge peaceful demonstrations and non-violent protests of 2017 that become “sedition”. This ruling opens the door to any protest activity, like trade union pickets or organised attempts to stop evictions, being regarded as “seditious”.

In an October 16 interview in the Catalan daily Ara, Jordi Sànchez said: “The sentence unequivocally lies. It doesn’t specify any detail of the supposed strategy of sedition. Not one confirmed meeting, not one email, only declarations in public ANC [Catalan National Assembly] events and the calling of demonstrations.

“The Supreme Court judges’ hostility towards us has betrayed them. Their animosity towards us has leaked out in the sentence in the form of false statements to justify the prison terms.”

Offensives launched

The verdict has also been the signal for new offensives from both sides of the Catalan-Spanish State struggle.

The Spanish judiciary immediately banned convicted Catalan leaders from standing in the November 10 Spanish general election and judge Llarena reissued a European arrest warrant for the extradition of former Catalan president Carles Puigdemont from Belgium.

The PSOE government went on an offensive to persuade other countries of the immaculate character of the Spanish legal system. Cabinet members with foreign languages made themselves available for interviews on whatever international channels would have them.

On the Catalan side, the enormous, growing tsunami of mass protest started to roll.

All this is taking place three weeks out from the Spanish general election, in which Catalonia will dominate as never before. In Jordi Sànchez’s words: “They believe that they will terminate people’s sentiments by beheading those they think are leaders of the process.

“They are having the opposite effect.”

A ruling against the right to decide

by Jaime Pastor (extracts)

A reading of the 23 pages of the judgment devoted to rejecting the claim to the right to decide (199-222) reveals clearly the pirouettes resorted to by the Supreme Court (SC) in order to disqualify it. Notwithstanding its statement that “it is not our job to offer — or pursue or insinuate — political solutions to a problem with deep historical roots” (referring obviously to Catalonia’s relation to Spain), it immediately goes on to reject the defence’s allegations, since accepting them “would be used to affirm, in opposition to a monistic vision of sovereignty that is typical of historical constitutionalism, a constitutional pluralism, a diffuse and shared sovereignty including a co-sovereignty transcending rancid concepts affected by the passage of time.”

Well yes, ladies and gentlemen, if we analyze the present and global political reality, it does not support a monistic or unilateral vision of sovereignty, since what we are witnessing is a now irreversible crisis of the sovereign national-state paradigm. In the framework of neoliberal globalization what has occurred is an intertwining of sovereignties and jurisdictions within an hierarchical inter-state system that in turn is increasingly fusing with the major economic powers around a lex mercatoria común under which most states are reluctant to recognize internal national and cultural diversity, and above all are draining it of democracy and popular sovereignty. Is not the reality of the European Union a confirmation of that “diffuse and shared” sovereignty, which has led even the states of the Eurozone to renounce one of their most symbolic powers, that is monetary sovereignty? […]

It is in this reality of an institutional architecture that a multilevel governance is developing and expanding on a global scale, especially around the hard core of politics — economics and finance, civil and military security, etc. — shared by the IMF, the World Bank, the central banks, NATO, the G8 and the United States. So it is truly sarcastic to speak of the exclusive sovereignty of states and, in our case, of the preservation of the sovereignty of the Spanish people when the latter have been excluded, for example, from deciding on constitutional reforms of such huge scope as the reform of the much-criticized article 135 of the Constitution — which annulled the social character of the “social and democratic rule of law” established by that same fundamental law. In reality, unfortunately, there is one area in which that exclusive state sovereignty is exercised, and in an increasingly more repressive form, as we see in the Mediterranean: the border controls imposed on the free movement of persons even while barriers to the entry and flight of capital continue to be eliminated.

In this regard, and to be brief, I take the liberty of quoting what I wrote recently in Le Monde Diplomatique:[1]

“In today's world, moreover, although the sovereign state paradigm continues to exist, we know that we are actually in an increasingly interdependent world on all levels, as well as a hierarchical system of states, in turn merged with major economic powers that seek to impose their interests and decisions over and above the peoples and even their representative institutions. We should not be surprised, therefore, at the rise of popular-based sovereignty movements in very different places on the planet and with quite distinct ideological orientations.

“In what concerns us here, it should be recalled that we have arrived at this point after a long process in which most states, especially since the end of the 18th century, have tended to develop a model of nationalization of their respective populations based on the promotion of a single national identity, a single language and a single culture. This paradigm, according to which access to citizenship rights is linked to belonging — voluntarily or by force — to the official national identity, has generated many relationships of inequality and injustice, due to the lack of recognition of the different ethnic and national identities within the same State.”

That is the crux of the matter and that is why the claim to the right of self-determination within demo-liberal states of the North has resurfaced. The old salt-water theory, which was intended to limit that right to colonies and occupied countries, has long since lost its applicability. That is why the internal and external dimensions of the right to self-determination are seen in cases such as that of Canada and Quebec, challenging the taboo of the “territorial integrity of states.”

Yet notwithstanding this persistent and ever-increasing reality in different places, the Supreme Court clings to the thesis of “the safeguarding of the territorial integrity of the already constituted states as the natural limit to what has been called the external dimension of the right to self-determination.” Aware, however, that this “territorial integrity” has been questioned in the aforementioned cases, it excuses itself by saying that “we cannot go beyond our functional space” only to do so later by rejecting any similarity between the case of Quebec and that of Canada, since “no similarity can be proclaimed between the historical origin of Quebec’s claim and the unilateral act of secession attributed to the defendants.”

Why not? Hasn’t there been a problem of accommodation, both in Quebec and in Catalonia, of their national realities within the respective states? Yes, there is a difference, of course, but it is that while in Canada that conflict was addressed after two referendums, and a political and democratic solution has been sought despite the fact that its Constitution does not recognize the right of secession, in the Spanish state there has been no willingness to find that democratic solution. On the contrary, from the first moment a fundamentalist reading of the 1978 Constitution has been imposed making it a true straitjacket — which is what the Canadian Supreme Court judgment [on Quebec secession] rejected.

Then the SC makes a quick and superficial tour of other cases: Montenegro (“a previously constitutionalized process”), Scotland (“result of a negotiation process” and with the particular feature that the UK constitution is unwritten), or Kosovo (for the unique nature of the conflict and the EU tutelage). Interestingly, with respect to the latter, the Court passes very quickly over the Advisory Opinion of the International Court of Justice (ICJ), forgetting that while it recognizes the specificity of the case, that does not stop it from extracting some general conclusions, among them that while international law does not recognize the right to secession within existing states, it does not prohibit it either. In order to recognize it, the ICJ limits itself to demanding some procedural requirements of the collective subject that is prepared to exercise it: the non-use of force, proof that the process seeking a negotiated settlement must be exhausted, and, finally, that a clear majority of the population concerned has declared itself in favour of secession by peaceful means.[2]

Starting, therefore, from the conclusions of the ICJ, the debate should revolve around the question of whether the negotiated settlement process has been exhausted within the framework of the Spanish State. It seems clear that since the de facto annulment of the substance of the Nou Estatut de Autonomía by the Constitutional Court,[3] there has been a widespread feeling in a large sector of Catalan society (of which about 48% vote for independentist parties, but whose real percentage could only be verified in a referendum that turns on this issue), of non-recognition as a people by the Spanish state. That 2010 ruling was understood as a breach of the territorial constitutional agreement of 1978. It is this that helps to explain the rapid rise of independentism over the almost 10 years since then, which is not to deny that other factors of a secondary order may have been an influence. All the more so when there has not been a single alternative proposal since then for a new type of consensual relationship among the parties of the regime other than the application of article 155[4] and/or the National Security Law.

In these circumstances, and returning to the case of Kosovo, the conclusions of the ICJ should be taken into consideration and the possibility of recognizing the right to secession be accepted […] that is, to recognize that in the last resort, the negotiation routes have been exhausted and to avoid a stagnation of the conflict, it would be legitimate to respect the right to secession of the population of the affected territorial area (in this case an Autonomous Community) provided that it complies with the democratic procedural requirements. It is precisely around this hypothesis that there is a total absence of references in the Supreme Court ruling.

The final answer of the SC is, therefore, that “there is no such right” and, what is worse, that “there is no democracy outside the rule of law,” thus opposing one principle to another and refusing to recognize, as did the Constitutional Court itself, that there is at least a “political aspiration” to which a political solution should be sought. The logical thing, then, would be to adopt an evolutionary interpretation of rights, as was done, by the way, with the recognition of gay marriage, and to consider, as the ICJ did, that there are extreme situations in which the legitimate exercise of the right to decide prevails over the “safeguarding of the territorial integrity of the already constituted states” and, in our case, of the sacred unity of Spain. […]

---

[1] Jaime Pastor, “La cuestión catalana y la disputa por la soberanía,” Le Monde Dipomatique (Spanish edition), No. 271, p. 3. Available in Viento Sur: https://vientosur.info/spip.php?article13844.

[2] Iñigo Urrutia, “Territorial Integrity and Self-Determination: The Approach of the International Court of Justice in the Advisory Opinion on Kosovo,” REAF-Revista d’Estudis Autonòmics i Federals Vol. 16 (2012). Available at https://works.bepress.com/inigo_urrutia/5/.

[3] The 2006 Statute of Autonomy of Catalonia was a law passed by the Catalan legislature, then approved by Spain’s parliament and later ratified in a referendum by Catalan voters. Almost immediately, the opposition center-right Popular Party challenged the statute before the Constitutional Court. The court deliberated for the next four years until June 28, 2010 when it struck down 14 of the statute’s 223 articles and curtailed another 27. Among other things, the ruling struck down attempts to place the distinctive Catalan language above Spanish in the region; ruled as unconstitutional regional powers over courts and judges; and said: “The interpretation of the references to ‘Catalonia as a nation’ and to ‘the national reality of Catalonia’ in the preamble of the Statute of Autonomy of Catalonia have no legal effect.” (“The Spanish Court Decision That Sparked the Modern Catalan Independence Movement,” https://www.theatlantic.com/international/archive/2017/10/catalonia-referendum/541611/.) – Tr.

[4] Article 155 is only two short paragraphs of the 1978 Constitution of Spain. It says that if a regional government “does not comply with the obligations of the Constitution or other laws it imposes, or acts in a way that seriously undermines the interests of Spain,” the national government can ask the Senate to vote on the use of the measure. (“What is Article 155 of the 1978 Spanish Constitution?,” https://www.aljazeera.com/news/2017/10/article-155-spanish-constitution-171019100117592.html.) – Tr.

Catalan independence leaders sentenced to heavy jail terms

The savage sentences handed down by Spain’s Supreme Court against nine Catalan independence leaders have been denounced by political leaders in Quebec, including Premier François Legault. In the forefront are the deputies of Québec solidaire, who will present a motion this week in the National Assembly condemning the repression and reaffirming the right of self-determination of peoples.

“Jailing elected members because they exercised their democratic duty does not make good sense,” said QS deputy co-leader Manon Massé. She was responding to a letter sent to QS by the president of the Catalan parliament asking them to find a way to help in resolving the political conflict in Spain. Massé, who had visited Catalonia in 2017 at the time of the independence vote, testified by videoconference in April during the trial of Jordi Cuixart, leader of one of the social movements supporting independence.

Campaigning in Canada’s federal election, Bloc Québécois leader Yves François Blanchet called on the leaders of the other parties, starting with Prime Minister Justin Trudeau, to denounce the heavy sentences imposed on the Catalan leaders. Trudeau refused, arguing that it involved an internal Spanish affair. He invoked the same neutrality in 2017 when Spanish police beat Catalan voters who sought to exercise their right to vote. At the time Jagmeet Singh, newly elected leader of the New Democratic Party, denounced Trudeau, saying the right to self-determination was one of the most important rights.

In the article below, Dick Nichols reports on the massive protests that have erupted in Catalonia in response to the court sentences. Nichols is the Barcelona-based European correspondent of Green Left Weekly, from which the article is reproduced, with thanks.

Nichols’ article is followed by extensive excerpts from an article by Viento Sur editor Jaime Pastor critically dissecting the meaning of the Spanish court’s judgment, and in particular the parts in which the court attempts to distinguish the Catalan case from those of other national minority peoples in states of the geographical North, starting with Quebec. My translation from the Spanish.

– Richard Fidler

* * *

Vindictive sentence in Catalan leaders’ trial unleashes tsunami of protest

By Dick Nichols, Barcelona, October 18, 2019

The gap between the 75%–80% of Catalans who uphold their country’s right to self-determination, and the Spanish elites and parts of Spanish society that do not want to know anything about it, was already very wide before October 14.

But on that day, when the Spanish Supreme Court condemned nine Catalan political and social movement leaders to a total of 99.5 years jail, it most likely became unbridgeable.

Following the sentence of the leaders for their role in the October 1, 2017 independence referendum, popular outrage in Catalonia immediately exploded in mass protests involving tens of thousands of people.

They occupied Barcelona airport, imposed road blocks on major highways, demonstrated in huge numbers outside Spanish government offices and began “Marches for Freedom” on Barcelona from five provincial cities.

Every imaginable Catalan social and sporting organisation, from Barcelona Football Club to chess associations, has issued statements condemning the sentences.

On the nights of October 15–16, police and small groups engaged in running battles in central Barcelona, as smoke rose from burning rubbish bins.

On October 16, Spanish Socialist Workers’ Party (PSOE) acting Prime Minister Pedro Sánchez appeared on television to warn that security forces would act “firmly, serenely and proportionately” in the face of violence.

To his right, People’s Party (PP) leader Pablo Casado demanded the declaration of a state of emergency in Catalonia, while Citizens’ leader Albert Rivera called for an end to Catalan self-rule under article 155 of the Spanish constitution.

One of the main instruments coordinating these responses is the Democratic Tsunami platform, anonymously run by activists from the October 1 referendum, and coordinated via a Telegram channel that, at the time of writing, had attracted 300,000 subscribers.

Punishment without crime

The unanimous verdict of the seven Supreme Court judges that set off this still expanding wave of protest was that nine Catalan leaders — seven former ministers and social movement leaders Jordi Sànchez and Jordi Cuixart — were guilty of “sedition” in preparing the October 1 referendum.

For this 18th century crime, long deleted from the penal codes of many other European states, they were sentenced to jail terms ranging from 9 to 13 years.

The harshest sentence was handed out to former Catalan vice-president Oriol Junqueras as “leader of the sedition”. Former ministers Raül Romeva (foreign affairs), Dolors Bassa (social welfare) and Jordi Turull (minister of state) came next with 12 years: along with Junqueras they were also found guilty of “embezzlement”.

Former Catalan parliament speaker Carme Forcadell incurred 11.5 years jail for allowing the chamber to vote on the referendum’s enabling law, after being instructed by the Spanish Constitutional Court not to do so.

The “sedition” of former Catalan interior minister Joaquim Forn (11.5 years) consisted in undermining the ability of the Catalan police to deliver and enforce Spanish state court orders.

Former territory minister Josep Rull was found guilty of denying a Spanish Civil Guard ship mooring facilities and of making public buildings available as voting centres.

As for Òmnium Cultural president Cuixart and former Catalan National Assembly president Sànchez, their “sedition” was proven by the fact that they had called demonstrations against Civil Guard searches and urged people to defend voting centres against police and Civil Guard attempts to impound ballot boxes.

Along with these nine, who have already been held in preventive detention for up to two years, the court found former ministers Carles Mundó (attorney-general), Santi Vila (business) and Meritxell Borras (education) guilty of “disobedience”, fining each €60,000 and banning them from standing for public office for 18 months.

The nine jailed leaders have been banned from standing for public office for the term of their sentences.

Why this verdict?

The verdict is the predictable result of the pressures operating on the Supreme Court and its chief judge Manuel Marchena.

The chief pressure was for the trial to produce an exemplary punishment of the Catalan leaders. They had humiliated the Spanish state by successfully organising a unilateral independence referendum after 18 failed attempts to negotiate a Scottish-style referendum with successive Spanish governments.

A measure of the viciousness of the sentences is to compare them to those arising from the failed 1981 coup attempt. The average punishment for the military and Civil Guards who tried to reimpose the Francisco Franco dictatorship then was six years jail: the sentences of the Catalan leaders average 8.3 years.

The Supreme Court judges were doing the work set out for them by the previous PP government of Mariano Rajoy.

According to a leaked WhatsApp message by PP Senate spokesperson Ignacio Cosidó, its Second Chamber, which heard the case, was controlled “via the back door”.

There was no way its judges, even their “progressive” minority, were going to find the Catalan leaders innocent, or guilty only of disobedience (which carries no jail sentence).

There was no ‘rebellion’

However, the heavy sentences the court was always going to impose have to be defensible in law, not only within Spain but especially before a European Court of Human Rights — which in 2018 upheld nine out of ten appeals against Spanish court decisions.

This pressure to find a plausible legal foundation for their decision meant the judges had to discard the “rebellion” charge against the Catalan leaders.

This indictment was originally brought by the investigating magistrate Pablo Llarena and was backed by the Spanish prosecutor-general’s office and the “popular prosecution”, the ultra-right party Vox.

(The “popular prosecution” is a Spanish institution originally designed to allow the representation of community or public interest.)

Dropping the charge of “rebellion”, which a majority of Spanish jurists had already declared inapplicable, was also probably the price of a unanimous verdict between judges of different political temperaments.

It was also a political imperative. It will help Pedro Sánchez maintain the myth that Spain is a “law-governed state” with an independent judiciary and it will also help the European Union and its member states, fearful of any Catalan threat to the EU status quo, sustain the same fiction.

In the days after the verdict, spokespeople for the European Commission and the British government robotically repeated the line from Madrid.

Caught in contradiction

The dropping of “rebellion” comes at a price, however, because the whole Spanish-patriotic view of the October 1 referendum, from King Philip down, is that it was a deliberate, rebellious assault on the Constitution.

Sensitive to the angst their appeal-proofed verdict would cause, the judges devoted about 200 pages of the 493-page judgement to arguments against the “rebellion”.

Yet, in adopting the “sedition theory”, the judges fall into a painful contradiction.

Their decision says, for example, that October 1 did not involve “preconceived, deliberate and functional” violence aimed at achieving Catalonia’s separation from the Spanish state, but was rather an attempt to pressure it into negotiations.

“The over-excited citizens who believed that the positive result of the so-called referendum would lead to the hoped-for horizon of a sovereign republic were unaware that the right to decide had changed into an atypical right to bring pressure.”

But if that argument is valid against “rebellion”, how is it not also valid against “sedition”? The only difference in Spanish law is that “rebellion” is a crime against the constitution and “sedition” a crime against public order.

The judges’ answer was to smother the contradiction in lurid fictional accounts of the events of 2017. These are based on the well-rehearsed evidence of Spanish National Police and Civil Guard officers, whom Marchena “spared” from defence cross-examination, backed by visual evidence, during the trial.

In their decision, it is the huge peaceful demonstrations and non-violent protests of 2017 that become “sedition”. This ruling opens the door to any protest activity, like trade union pickets or organised attempts to stop evictions, being regarded as “seditious”.

In an October 16 interview in the Catalan daily Ara, Jordi Sànchez said: “The sentence unequivocally lies. It doesn’t specify any detail of the supposed strategy of sedition. Not one confirmed meeting, not one email, only declarations in public ANC [Catalan National Assembly] events and the calling of demonstrations.

“The Supreme Court judges’ hostility towards us has betrayed them. Their animosity towards us has leaked out in the sentence in the form of false statements to justify the prison terms.”

Offensives launched

The verdict has also been the signal for new offensives from both sides of the Catalan-Spanish State struggle.

The Spanish judiciary immediately banned convicted Catalan leaders from standing in the November 10 Spanish general election and judge Llarena reissued a European arrest warrant for the extradition of former Catalan president Carles Puigdemont from Belgium.

The PSOE government went on an offensive to persuade other countries of the immaculate character of the Spanish legal system. Cabinet members with foreign languages made themselves available for interviews on whatever international channels would have them.

On the Catalan side, the enormous, growing tsunami of mass protest started to roll.

All this is taking place three weeks out from the Spanish general election, in which Catalonia will dominate as never before. In Jordi Sànchez’s words: “They believe that they will terminate people’s sentiments by beheading those they think are leaders of the process.

“They are having the opposite effect.”

A ruling against the right to decide

by Jaime Pastor (extracts)

A reading of the 23 pages of the judgment devoted to rejecting the claim to the right to decide (199-222) reveals clearly the pirouettes resorted to by the Supreme Court (SC) in order to disqualify it. Notwithstanding its statement that “it is not our job to offer — or pursue or insinuate — political solutions to a problem with deep historical roots” (referring obviously to Catalonia’s relation to Spain), it immediately goes on to reject the defence’s allegations, since accepting them “would be used to affirm, in opposition to a monistic vision of sovereignty that is typical of historical constitutionalism, a constitutional pluralism, a diffuse and shared sovereignty including a co-sovereignty transcending rancid concepts affected by the passage of time.”

Well yes, ladies and gentlemen, if we analyze the present and global political reality, it does not support a monistic or unilateral vision of sovereignty, since what we are witnessing is a now irreversible crisis of the sovereign national-state paradigm. In the framework of neoliberal globalization what has occurred is an intertwining of sovereignties and jurisdictions within an hierarchical inter-state system that in turn is increasingly fusing with the major economic powers around a lex mercatoria común under which most states are reluctant to recognize internal national and cultural diversity, and above all are draining it of democracy and popular sovereignty. Is not the reality of the European Union a confirmation of that “diffuse and shared” sovereignty, which has led even the states of the Eurozone to renounce one of their most symbolic powers, that is monetary sovereignty? […]

It is in this reality of an institutional architecture that a multilevel governance is developing and expanding on a global scale, especially around the hard core of politics — economics and finance, civil and military security, etc. — shared by the IMF, the World Bank, the central banks, NATO, the G8 and the United States. So it is truly sarcastic to speak of the exclusive sovereignty of states and, in our case, of the preservation of the sovereignty of the Spanish people when the latter have been excluded, for example, from deciding on constitutional reforms of such huge scope as the reform of the much-criticized article 135 of the Constitution — which annulled the social character of the “social and democratic rule of law” established by that same fundamental law. In reality, unfortunately, there is one area in which that exclusive state sovereignty is exercised, and in an increasingly more repressive form, as we see in the Mediterranean: the border controls imposed on the free movement of persons even while barriers to the entry and flight of capital continue to be eliminated.

In this regard, and to be brief, I take the liberty of quoting what I wrote recently in Le Monde Diplomatique:[1]

“In today's world, moreover, although the sovereign state paradigm continues to exist, we know that we are actually in an increasingly interdependent world on all levels, as well as a hierarchical system of states, in turn merged with major economic powers that seek to impose their interests and decisions over and above the peoples and even their representative institutions. We should not be surprised, therefore, at the rise of popular-based sovereignty movements in very different places on the planet and with quite distinct ideological orientations.

“In what concerns us here, it should be recalled that we have arrived at this point after a long process in which most states, especially since the end of the 18th century, have tended to develop a model of nationalization of their respective populations based on the promotion of a single national identity, a single language and a single culture. This paradigm, according to which access to citizenship rights is linked to belonging — voluntarily or by force — to the official national identity, has generated many relationships of inequality and injustice, due to the lack of recognition of the different ethnic and national identities within the same State.”

That is the crux of the matter and that is why the claim to the right of self-determination within demo-liberal states of the North has resurfaced. The old salt-water theory, which was intended to limit that right to colonies and occupied countries, has long since lost its applicability. That is why the internal and external dimensions of the right to self-determination are seen in cases such as that of Canada and Quebec, challenging the taboo of the “territorial integrity of states.”

Yet notwithstanding this persistent and ever-increasing reality in different places, the Supreme Court clings to the thesis of “the safeguarding of the territorial integrity of the already constituted states as the natural limit to what has been called the external dimension of the right to self-determination.” Aware, however, that this “territorial integrity” has been questioned in the aforementioned cases, it excuses itself by saying that “we cannot go beyond our functional space” only to do so later by rejecting any similarity between the case of Quebec and that of Canada, since “no similarity can be proclaimed between the historical origin of Quebec’s claim and the unilateral act of secession attributed to the defendants.”

Why not? Hasn’t there been a problem of accommodation, both in Quebec and in Catalonia, of their national realities within the respective states? Yes, there is a difference, of course, but it is that while in Canada that conflict was addressed after two referendums, and a political and democratic solution has been sought despite the fact that its Constitution does not recognize the right of secession, in the Spanish state there has been no willingness to find that democratic solution. On the contrary, from the first moment a fundamentalist reading of the 1978 Constitution has been imposed making it a true straitjacket — which is what the Canadian Supreme Court judgment [on Quebec secession] rejected.

Then the SC makes a quick and superficial tour of other cases: Montenegro (“a previously constitutionalized process”), Scotland (“result of a negotiation process” and with the particular feature that the UK constitution is unwritten), or Kosovo (for the unique nature of the conflict and the EU tutelage). Interestingly, with respect to the latter, the Court passes very quickly over the Advisory Opinion of the International Court of Justice (ICJ), forgetting that while it recognizes the specificity of the case, that does not stop it from extracting some general conclusions, among them that while international law does not recognize the right to secession within existing states, it does not prohibit it either. In order to recognize it, the ICJ limits itself to demanding some procedural requirements of the collective subject that is prepared to exercise it: the non-use of force, proof that the process seeking a negotiated settlement must be exhausted, and, finally, that a clear majority of the population concerned has declared itself in favour of secession by peaceful means.[2]

Starting, therefore, from the conclusions of the ICJ, the debate should revolve around the question of whether the negotiated settlement process has been exhausted within the framework of the Spanish State. It seems clear that since the de facto annulment of the substance of the Nou Estatut de Autonomía by the Constitutional Court,[3] there has been a widespread feeling in a large sector of Catalan society (of which about 48% vote for independentist parties, but whose real percentage could only be verified in a referendum that turns on this issue), of non-recognition as a people by the Spanish state. That 2010 ruling was understood as a breach of the territorial constitutional agreement of 1978. It is this that helps to explain the rapid rise of independentism over the almost 10 years since then, which is not to deny that other factors of a secondary order may have been an influence. All the more so when there has not been a single alternative proposal since then for a new type of consensual relationship among the parties of the regime other than the application of article 155[4] and/or the National Security Law.

In these circumstances, and returning to the case of Kosovo, the conclusions of the ICJ should be taken into consideration and the possibility of recognizing the right to secession be accepted […] that is, to recognize that in the last resort, the negotiation routes have been exhausted and to avoid a stagnation of the conflict, it would be legitimate to respect the right to secession of the population of the affected territorial area (in this case an Autonomous Community) provided that it complies with the democratic procedural requirements. It is precisely around this hypothesis that there is a total absence of references in the Supreme Court ruling.

The final answer of the SC is, therefore, that “there is no such right” and, what is worse, that “there is no democracy outside the rule of law,” thus opposing one principle to another and refusing to recognize, as did the Constitutional Court itself, that there is at least a “political aspiration” to which a political solution should be sought. The logical thing, then, would be to adopt an evolutionary interpretation of rights, as was done, by the way, with the recognition of gay marriage, and to consider, as the ICJ did, that there are extreme situations in which the legitimate exercise of the right to decide prevails over the “safeguarding of the territorial integrity of the already constituted states” and, in our case, of the sacred unity of Spain. […]

---

[1] Jaime Pastor, “La cuestión catalana y la disputa por la soberanía,” Le Monde Dipomatique (Spanish edition), No. 271, p. 3. Available in Viento Sur: https://vientosur.info/spip.php?article13844.

[2] Iñigo Urrutia, “Territorial Integrity and Self-Determination: The Approach of the International Court of Justice in the Advisory Opinion on Kosovo,” REAF-Revista d’Estudis Autonòmics i Federals Vol. 16 (2012). Available at https://works.bepress.com/inigo_urrutia/5/.

[3] The 2006 Statute of Autonomy of Catalonia was a law passed by the Catalan legislature, then approved by Spain’s parliament and later ratified in a referendum by Catalan voters. Almost immediately, the opposition center-right Popular Party challenged the statute before the Constitutional Court. The court deliberated for the next four years until June 28, 2010 when it struck down 14 of the statute’s 223 articles and curtailed another 27. Among other things, the ruling struck down attempts to place the distinctive Catalan language above Spanish in the region; ruled as unconstitutional regional powers over courts and judges; and said: “The interpretation of the references to ‘Catalonia as a nation’ and to ‘the national reality of Catalonia’ in the preamble of the Statute of Autonomy of Catalonia have no legal effect.” (“The Spanish Court Decision That Sparked the Modern Catalan Independence Movement,” https://www.theatlantic.com/international/archive/2017/10/catalonia-referendum/541611/.) – Tr.

[4] Article 155 is only two short paragraphs of the 1978 Constitution of Spain. It says that if a regional government “does not comply with the obligations of the Constitution or other laws it imposes, or acts in a way that seriously undermines the interests of Spain,” the national government can ask the Senate to vote on the use of the measure. (“What is Article 155 of the 1978 Spanish Constitution?,” https://www.aljazeera.com/news/2017/10/article-155-spanish-constitution-171019100117592.html.) – Tr.