Sujit Choudhry speaks out on Spain and Catalonia

Sujit Choudhry and several leading constitutional law scholars penned an open letter to both the Catalan and Spanish governments on the current crisis in Catalonia that implored both sides to engage in dialogue. The hope is that members of these two governments will act in good faith and have an open-minded discussion about their constitutional issues.

In the letter, the scholars ask Catalonian President Puigdemont to show that he is committed to the task of seceding from Spain. The scholars believe that the best way the president can demonstrate this commitment is to arrange a referendum that confirms the desires of the Catalan people. They also asked Prime Minister Rajoy of Spain to accept the fact that secession is what many Catalans want and not to do anything to suppress their ability to express that desire peacefully.

The scholars say that a referendum is needed to help people understand that the Catalan people’s quest for independence presents difficulties for the Spanish constitutional order. In the end, the scholars state that both sides need to come to a constitutional settlement that recognizes the rights of both sides and accepts the Catalan people’s ambitions.

Sujit Choudhry speaks out on Spain and Catalonia

A Plea for Dialogue: An Open Letter on Catalonia

In this letter that was co-authored by Sujit Choudhry, the constitutional scholars state that it is in the best interests of all people within Spain’s and Catalonia’s borders as well as those outside of them that the Catalonian and Spanish governments work out a peaceful, orderly and agreeable ending to this dispute. Otherwise, the foundational ideals of the European Union would be undermined. Spain moved in the direction of derailing any good that had been done in the past on October 1 of this year. It engaged in brutality to keep Catalan from holding a referendum on its independence and caused an already tense situation to become even more so.

Many times in the past, circumstances such as these have gotten much worse. The fact that Mr. Puigdemont postponed Catalonia’s declaration of independence in order to continue to have a dialogue with Spain on this issue needs to be seen as the right decision.

Although it was admirable for Mr. Puigdemont to suggest this, the public also needs the Puigdemont government to give up its insistence that the Catalonian people want to secede from Spain. It has become clear that the people have expressed some doubt about independence, and many others are completely against it. More must be considered other than just the majority opinion on this subject.

The scholars stated that they believed that the Spanish government did everything that it could to subdue voter turnout. It is still not clear that the Catalonian people are in favor of secession and might be amenable to constitutional alternatives that aren’t nearly as radical as secession. The scholars state that the majority of Catalan’s people need to be in agreement with the new solution, and the government will have to determine what this will be through democratic, fair and accurate means.

It seems that Mr. Rajoy is not concerned about the Catalonian people’s wishes and believes that he was justified in handling this disagreement in a repressive fashion. The scholars let Mr. Rajoy know that this is not the case in international law. They believe that Mr. Rajoy is not going to be able to continue arresting and prosecuting those who fight for Catalan independence indefinitely. If Mr. Rajoy continues his present path, it would lead to human rights abuses. It would also violate the Catalonian right to autonomy.

The scholars believe that Mr. Rajoy must cease his heavy-handed tactics when dealing with the Catalonian people. He must express his willingness to accept the outcome if the people vote to become an independent nation. The scholars still believe that a referendum is the best way to determine the will of the people. The Spanish government’s actions have harmed democracy in both Catalan and Spain and make it impossible for Spain to govern the region without resorting to violence. The only correct direction for Spain and Catalan to go in is toward a constitutional dialogue with the true wishes of the Catalan people out in the open.

What has happened in Catalonia since the Referendum of October 1, 2017?

Since the referendum vote for succession on October 1, 2017, there have been many unsettling issues in Madrid and in Catalonia. In October 2017, the Spanish Senate approved using Article 155 of the Spanish Constitution which effectively disbanded the Catalonia parliament, thus leaving Catalonia once again under the rule of the Spanish government. Prime Minister Rajoy then brought charges of sedition, misuse of public funds and rebellion against former President Carles Puigdemont and several of his pro-independence backers. When European Arrest Warrants were issued for these pro-independence politicians Mr. Puigdemont was fortunate enough to escape to Belgium where he lives in exile today. Other politicians were not as fortunate and are currently incarcerated waiting for their trials to begin.

Several other actions were taken by the Rajoy Spanish government too. There were special regional elections held in December 2017 with the hopes that the separatist leaders would be voted out of office. The actions taken by the prime minister of Spain did not have the exact outcome that he had hoped for after the election results were tallied. The pro-independence parties did win the majority again in the Catalan government regional parliament but currently hold a smaller margin of seats. Mr. Puigdemont was also re-elected to the Catalan parliament who called for renewed dialogue with Prime Minister Rajoy directly after the elections even though he is in exile. Once again Prime Minister Rajoy quickly dismissed the idea of renewing dialogue stating he would only talk with Ines Arrimadas who Mr. Rajoy considered to be the leader of the Catalan government after the special elections were held.

Several incidents occurred in March of 2018 that weigh heavy on the outcome of independence and future attempts on dialogue to end the constitutional crisis in Spain. First while in exile in Belgium, Mr. Puigdemont put his hat in the ring to become the President of Catalonia once again. With strong arm tactics used by Spain’s judiciary, the Catalan parliament was once again stifled and a vote did not take place in parliament.

Thus, without the ability to return to Catalonia Mr. Puigdemont officially removed himself from consideration to be the leader of Catalonia. The Catalan parliament has since installed Mr. Quim Torra as the regional leader of Catalonia who was hand-picked by Mr. Puigdemont while in exile. Although he has not formally spoken in public about a new referendum on secession, Mr. Torra has vowed to keep the pro-independence agenda moving forward. Many supporters within the pro-independence movement believe the repressive actions taken by the Spanish government in October 2017 will be repeated if Mr. Torra calls for a new referendum. The fear of a Franco Era attack is still on the minds of people in Catalonia and would like assurances from Madrid before moving forward with an open referendum on secession.

An update on what has happened in Catalonia since the Referendum.

The Arrest and Release of Mr. Puigdemont

Another development in the constitutional crisis took place in March 2018 when Mr. Puigdemont was arrested for his outstanding European Arrest Warrant while traveling through Germany. The Spanish government believed Germany would extradite Mr. Puigdemont back to Spain to face the charges of rebellion, sedition and corruption brought on by Mr. Rajoy’s Spanish government. The German courts ruled that the charge of rebellion is defined differently under German law as opposed to the definition set forth by Spanish law. Once again the favored action by the Spanish government was foiled as Mr. Puigdemont was released on bail and returned to exile in Belgium. Another defeat for the Spanish government led by Prime Minister Rajoy was handed to the politicians in Madrid with regards to extraditing Mr. Puigdemont back to Spain. Although in July 2018, a German court did find that Mr. Puigdemont should be returned to Spain to face charges of misusing public funds and corruption but Mr. Puigdemont was not within Germany at the time of the verdict.

Under Spanish law charges for misusing public funds better known as corruption, are not as harsh as rebellion or sedition charges. Subsequently, the Spanish government removed the European Arrest Warrants for Mr. Puigdemont and several other Catalan pro-independence representatives living in exile. The Supreme Court of Spain also confirmed that national arrest warrants for these individuals were still intact and charges would be brought forth if the exiled officials returned to Catalonia or Spain.

The Role of Social Media During Spain’s Constitutional Crisis

As the scholars in their op-ed pointed out, it is imperative to find out if a majority of people in Catalonia are in favor of independence for the Catalan region. The constitutional crisis between Spain and the region of Catalonia has been played out on social media in almost every imaginable forum from Facebook to Twitter to Reddit. By analyzing social media platforms researchers find out many different themes of sentiment towards an issue that are laced throughout the comments or actual posts.

In a recent study conducted by George Washington University School of Media and Public Affairs the use of social bots and propaganda from entities outside of Spain were quite common during the run up days before the referendum vote of October 2017. The study found that 97% of the pro-independence comments were generated by fake accounts, official Catalan government accounts and social bots. A mere 3% of the anti-Spanish government comments were linked to official member accounts. During a constitutional crisis such as this in Catalonia and Spain, the public was fed misinformation by fake user accounts and social bots that originated outside the region of crisis.

The question posed by the scholars in the op-ed of whether the actual Catalan people wanted independence cannot be answered by simply analyzing social media. But if social media is to play a part in how democratic countries determine their fate when voting, an analysis of the comments is a step in the right direction. Ultimately, the only way we will know if a majority of Catalans want to secede from Spain is with an open referendum vote that is not repressed or attacked by the Spanish government or the Spanish Supreme Court.

Charges of Corruption: The Changing of Political Powers

With the constitutional crisis in Catalonia unsolved, there was more gasoline poured on the political bonfire on May 24, 2018 when the National Financial Crime UnitNational Financial Crime Unit stormed the offices of Barcelona’s regional government. Once inside the agents retrieved hundreds of documents that were instrumental in outlining how the Catalan government financed the referendum that took place on October 1, 2017. Since the investigation the Supreme Court of Spain has executed national arrest warrants for 29 people on accusations of embezzling public money to finance the referendum. Out of those national arrest warrants 16 individuals had already been charged for their actions related to the day of referendum, including Mr. Puigdemont.

Another development happened in the afternoon on May 24, 2018 with the disclosure of a 1,687 page verdicthanded out by three judges of the National Criminal Court in Madrid. The verdict explained in detail how Spain’s ruling conservative party led by Prime Minister Rajoy had kept a set of secret books that outlined kickbacks from corporations and donors to the pockets of the politicians of Partido Popular. One week later on June1, 2018 Prime Minister Rajoy received a no-confidence vote from 180 of the 350 members of the Spanish parliament in Madrid. The flurry of investigations has left Pedro Sanchez the new Prime Minister of Spain.

After the changing of the guard in Madrid to Prime Minister Pedro Sanchez and Catalonia leader Mr. Quim Torra, there was hope that dialogue would resume with regards to the constitutional crisis in Catalonia that has rocked Spain. The two leaders are deadlocked as to what to do next with support increasing on both sides of the fence regarding the separatist movement as well as the nationalist movement within the Spanish government in Madrid.

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Is There a Right Time for Dialogue?

Many observers believe the last nine months in Spain has not been conducive for a pleasant political dialogue on the subject of secession from Spain. Other political problems have taken place in Spain during this nine month time frame including pensioners striking in February, while in March 5.3 million took to the streets for International Women’s Day and lastly in April thousands of people were enraged with the light sentences given to five men guilty in a gang-rape case. The disclosure of intense corruption that took place in May only added to the country’s political problems.

With the changes in power taking place, the scholars’ and Sujit Choudhry’s op-ed is still very relevant. There needs to be open dialogue between Madrid and Catalonia. Transparency is needed on both sides in order for some type of meaningful dialogue to be re-opened between the two leaders. But with both new leaders holding slim voting margins in the Spanish parliament as well as the Catalan parliament, setting up a framework for dialogue is difficult. Once again the question is left to Prime Minister Sanchez and Mr. Torra to formally announce their plans on how to approach the delicate subject of independence for the Catalonia people.

About Sujit Choudhry

Sujit Choudhry is an I. Michael Heyman Professor of Law at the University of California, Berkeley and a founding director of the Center for Constitutional Transitions. He is known all over the world for his extensive knowledge on politics and comparative constitutional law. Sujit Choudhry has been an advisor to foreign dignitaries who were building constitutions in their own countries, including Sri Lanka, Yemen, South Africa, Ukraine, Egypt, Jordan, Nepal, Libya and Tunisia. The World Bank and the United Nations Development Program invited him to be a consultant to the World Bank Institute. He is also associated with the United Nations Mediation Roster.

Sujit Choudhry wrote the letter with three other law experts, including Asanga Welikala, Zoran Oklopcic and Robert Howse. Welikala is a Lecturer in Public Law at the University of Edinburgh School of Law and the Director of the Edinburgh Centre for Constitutional Law. Oklopcic is at the Department of Law and Legal Studies at Carleton University, and Howse is a Lloyd C. Nelson Professor of International Law at the New York University School of Law.

The Center for Constitutional Transitions seeks to gather knowledge in the effort of constructing constitutions. Constitutional experts all over the world participate in these research studies that provide evidence for policy options that are offered to those who need them. Many entities take part in these studies, including universities, NGOs, think tanks and multilateral organizations, and Sujit Choudhry is currently running three of them.

For more information on Sujit Choudhry or the Center for Constitutional Transitions, visit Facebook or Twitter.

Originally published at patch.com on November 9, 2017.

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