Catalonian Independence Referendum: What’s Next?

By Marcelo Fernandez De La Mora

Catalonia’s election seriously reduced Spanish prime minister Mariano Rajoy’s political capital, moral authority, and credibility. Spain’s central government could still assume control of Catalonia’s administration by either invoking Article 155 of Spain’s constitution with Rajoy’s majority in the Senate if the region “acts gravely in the interests of the nation” and “does not follow the law or its constitutional obligations,” or through Spain’s National Security Act.

Such an intervention would be unpopular and appear authoritarian especially after his center-right People’s Party achieved a devastating election result in the Catalan Parliament, winning historic low of four out of 135 seats.

Spain’s Socialist Party, the main opposition party in Madrid, voted to establish direct rule in Catalonia and received an anemic gain of one seat, its second worst result in history.

The liberal Citizens’ Party made history, becoming the first unionist party to win a plurality of votes and seats in the last election, but it has a miniscule number of seats in Spain’s senate and is not the main opposition, making it irrelevant in the parliamentary process of abolishing Catalan home rule.

After an electoral defeat, an inability to stop two referendums deemed illegal by courts, and the reality that Rajoy was unable to govern Catalonia in a way that pleased even unionists, it appears that both Spanish and Catalan legislative and executive institutions are unable to stop Catalonia’s secession. However, Spain’s judiciary has now intervened, complicating pro-independence politicians from achieving their goals.

After Spain’s national police released a report outlining the architects of Catalonia’s secessionist movement on the evening of December 21, the day of Catalonia’s snap election, supreme court judge Pablo Llarena ruled that pro-independence MP Marta Rovira had to stand trial for misappropriation of public funds, rebellion, and sedition.

Consequentially, 19 pro-independence MPs are either in jail due to pre-trial detention or free on bail while facing criminal prosecution for trying to achieve Catalonia’s secession from Spain. The Catalonian election gave pro-independence parties a three-seat majority in parliament, and Judge Llarena’s ruling as well as the ongoing criminal investigation jeopardizes the formation of a pro-independence government.

The indictment of Marta Rovira further destabilizes the pro-independence Republican Left of Catalonia (ERC); the imprisonment of Oriol Junqueras, the party’s president and candidate for premier, caused the party to fall from a consistent double-digit lead that had begun in 2015 polls to third place on last Thursday’s election.

The most likely reason ERC lost was that it was unable to have an organized campaign without its leader, while pro-independence Carles Puigdemont was able to coordinate his campaign from Brussels. Rovira’s legal issues will likely leave her party without its direction because she was the individual who assumed most of Junqueras’ functions as party leader.

Assuming that earlier polls predicting Esquerra’s victory were correct, ERC officials and Junqueras proposed that Rovira could assume the Catalan premiership and form her own government while taking orders from her jailed party boss. ERC’s defeat and the possibility that Rovira may face pre-trial detention may result in a power vacuum or in a party without management.

Carme Forcadell, who was the ex-preseident of Catalonia’s National Assembly, a secessionist NGO, and the ex-Speaker of the Catalan Parliament is a possible successor to Rovira if she were to face incarceration.

Forcadell is also not without legal troubles, however. The aforementioned police report mentioned her as one of the leaders in the alleged “criminal conspiracy” and faces more criminal charges than most other pro-independence politicians.

Acting against a resolution from Spain’s Constitutional Court in October 2016, which forbade her from processing and putting a resolution to a vote in parliament that would outline a plan for Catalonia’s route to independence, Catalan prosecutors charged her with the crimes of disobeying a judge’s order and abusing her office. In a criminal complaint, they alleged she acted “with contempt against the Spainish Constitution” and with the intent “elaborate an elaborate plan for secession.”

Furthermore, the Catalan attorney general’s office, or Fiscalia Superior de Cataluña, alleged Forcadell used “an arbitrary use of her administrative authority” which no member of “the Catalan Parliament ha(d) the [legal] competence [to use]” and “processed a constitutionally forbidden procedure in parliament.” The Office went as far as accusing her of “dynamiting the territorial model” that Spain’s constitution enshrines. Forcadell’s personal attorneys attempted to dismiss the case in a brief, insisting that “a rule forbidding parliamentary debate cannot exist.”

The defiant speaker said “she did what she had to do and that she would do it again” and rejected the validity of the claims against her, promising that she would “protect the liberty of the Catalan Parliament.” She dismissed calls from the opposition Citizens’ Party and People’s Party to resign, promising she “[did] not fear disqualification from office.” Spain’s constitutional court unanimously urged prosecutors to indict Forcadell.

Meanwhile, Catalonia’s high court allowed the charges against her to go forward. Legal experts whom her party had previously chosen to ensure parliament was acting within the law had warned Forcadell that her actions would be illegal and those who processed the bill would be subject to legal action. Ines Arrimadas, the unionist leader of the opposition, remarked, “Their own [(pro-independence)] lawyers had turned against them.”

Last February, Catalan prosecutors charged her again with another instance of disobedience and abuse of office for bringing a resolution to the floor that would start the procedure of processing the law which would allow the October 1 referendum to take place. She was accused of having a “obstinate and stubborn will to violate [her] constitutional mandates.”

Outraged, Forcadell defended herself, accusing the Catalan attorney general’s office of “indicting us not for our actions, but for who we are and what we think” and for “a nullification of a determinate ideological orientation.” Catalonia’s high court dismissed her arguments, allowing the charges against her to proceed, and ruled she could stand trial for her previous alleged infractions in October 2016 and last February. Her trial is expected to conclude by September 2018.

Forcadell’s legal troubles do not finish there. On September 7, she was charged again with disobedience, abuse of office, and misappropriation of public funds for bringing a bill that allowed the October 1 referendum to occur. Prosecutors also accused three parliamentary officers and the entire Catalan government with these three charges. Catalonia’s high court originally was supposed to adjudicate the case until Spain’s supreme court assumed the case in late October. Her embezzlement charges were dismissed by the Catalan court.

Finally, along with the entire Catalan government and pro-independence parliamentary officers, she was charged with sedition, misappropriation, and rebellion for allowing the Catalan Parliament to vote on a resolution which proclaimed an independent Catalan Republic. She avoided pre-trial attention by saying she accepted the Spanish constitution and that the declaration of independence had “no juridical effects” and was “not legally binding.” She was released on bail, but lost some popularity for “submitting to the law.”

Other possible leaders for ERC include Anna Simo, a regional minister in 2006. But, she also faces prosecution as she was one of the parliamentary officers who allowed the processing of the prohibited bills along with Forcadell and others. Simo was charged last February for disobedience and abuse of office and was accused last September with counts of abuse of office, disobedience, and misappropriation of public funds. Last month, she was charged with sedition, rebellion, and a new count of embezzlement, but was released on bail after some short jail time.

Other ERC ex-ministers are under criminal investigation and are either exiled in Brussels, in jail, or free on bail.

Puigdemont and top members of his party, Junts per Catalunya, face similar issues. Puigdemont and other pro-independence ex-ministers would face jail time if they returned to Spain from exile in Brussels. If separatist politicians change congressional rules to allow Puigdemont to become premier without his presence in parliament, he may be able to both evade Spain’s justice system and govern from abroad. If the people facing charges take their seats next week in Barcelona and do not resign if they are sent again to preventative prison, separatists will lose their majority. If these individuals are convicted, separatists will regain their majority as the next candidate on the party’s list will be sworn in.

Junts per Catalunya’s leadership also faces prosecution, and mayors of both parties are also under investigation for their involvement in the prohibited referendum on October 1. If convicted or jailed, pro-independence parties would lose their leadership and would likely rethink their strategy.

Despite Puigdemont’s ability to evade Spain’s justice system and a real possibility that he may become Premier while in Belgium, the Spanish state has the proper legal instruments to prevent Puigdemont from breaking the law.

In 2015, Spain’s parliament approved a reform to Spain’s constitutional court allowing the body to remove officeholders who disobeyed its judicial resolutions. Lawyers for separatist parties challenged the law’s validity, alleging that it violated the separation of powers. Justice ministry officials replied that “[the Constitutional Court] would be more effective in protecting fundamental rights and public liberties.”

Some unionist and most pro-independence parties criticized the law, worrying it would affect the judiciary’s independence. Lawyers for the Basque Country’s regional government argued that the reform “denaturalized and altered the constitutional configuration [of the court].”

Lawyers for Catalonia’s government mainly argued that the law could not be enforced because “the processing of the law” in Spain’s parliament “violated the rights of legislators found in Spain’s Constitution of 1978.” The attorneys also pointed out that the law would illegally affect the “governance of autonomous communities,” the “principle of criminal procedure and parliamentary immunity,” and the “model of constitutional justice.”

Spain’s constitutional court ultimately upheld the act’s constitutionality twice. The European Council’s Venice Commission, a body that “provide[s] legal advice to [EU] member states” and “help[s] states wishing to bring their legal and institutional structures into line with European standards in the fields of democracy, human rights and rule of law,” reviewed the reform, concluding that even though “[the Commission] [did] not recommend that these powers be attributed to the Constitutional Court,” “the introduction of such powers [did] not contradict [European] standards.”

Unlike controversial judicial reform in Poland, the European Commission did not show significant signs of alarm or initiate proceedings to sanction Spain. Many separatist politicians have alleged that the justice system is politicized and that the jailed pro-independence “political prisoners” are there because “of what [they] think and represent.”

Furthermore, the report argues that “judges act with integrity, responsibility and rigor” even though “there is a certain incentive for judges to give up some independence by committing [to a political cause].” The report criticizes the way judges are hired, as there is “a heavily politicized control body and a system in which members of the higher courts are appointed with relative political influence.”

Nevertheless, “in practice, the judges have the possibility to fully exercise their independence.” Puigdemont and the other individuals facing prosecution should expect and are guaranteed a fair trial. If Spain’s supreme court convicts them, they can appeal the ruling to the Constitutional Court or European Court of Human Rights.