Catalan leaders in court facing crimes of more than 30 years in prison, by Duncan Sutherland

Guest post. Open to comments here.

Disloyalty or Dissent?

Political dissent is still evidently constitutionally defined as disloyalty in some instances in Spain. Is this a sound basis for the rule of law in a democracy? Discuss with reference to the Spanish constitution of 1978 and the founding principles of the European Union.

This could clearly be a suitable topic for discussion by students in a political philosophy seminar, and probably is at this very moment, especially in Catalonia, but it is also the moot point which will no doubt be thrashed out in court in Madrid, Barcelona and possibly Brussels, as Catalan Government ministers and other political figures are tried on charges of sedition and rebellion inter alia while the President of the Generalitat and four of his ministers resist extradition from Belgium to Spain if their highly qualified Belgian human-rights lawyer succeeds in preventing their rapid removal by means of European arrest warrant.

In this bizarre scenario the Spanish Government is giving the impression that it thinks it has matters well in hand, although it has called a general election in Catalonia which the pro-independence parties look as if they will win, according to the latest Catalan opinion poll. If they do win the election on December 21st, they will no doubt run into trouble with Spanish law again, as their political objectives are at odds with the constitution as it stands. Article 155 will be invoked again, and instability will continue. Groundhog day, as the Americans say. The King will gnash his teeth, and the Madrid newspapers will grit theirs as they fulminate extravagantly about disloyalty, disobedience, sedition, insurrection … and, oh yes, rebellion, all terms, it is worth noting, which should never be used lightly and should not normally be expected to be applied to the political initiatives of dissenters in a liberal democracy within the European Union.

As for the Spanish economy while all of this is going on, business leaders will have to face up to the fact that political leaders in Madrid are getting it wrong and failing to serve the best interests of Spain. Something will have to give. This is where the EU could help, if Spain would accept mediation, but it will not. Or will it?

Is Spain an immature democracy on the slide, with damaging impacts all around, or a maturing democracy which may be about to evolve?

There are those, no doubt, who will not agree that Spain’s democracy is immature, even though it is only about 40 years since the transition to democracy began. What has become apparent, I venture to suggest, is that that transition is not yet complete. It is not only the inflexibility of the constitution but also the inflexibility of the generation of conservative politicians who are currently in power in Madrid which accounts for this. There is a mindset which derives not only from the era of the fascist Franco dictatorship but also from a culturally entrenched authoritarianism for which the Catholic church in Spain has a large share of responsibility.

Intertwined political and ecclesiastical authoritarianism has a long and particularly bloody history in Spain, with phenomenal tentacular reach through time and space. When Philip II sent the Armada Invencible to conquer England and punish its Protestant (supposedly heretic) queen for executing the Catholic queen of Scotland, he made not only a bloody mark on history but also a rather aesthetically satisfying contribution to the design of the badge on my school uniform, because it bore an idealized image of a 16th-century Spanish galleon, inaccurately representing a ship which, following the defeat of the Armada in 1588, appeared in the harbour of the fishing port where I went to school not far from St Andrews. The ship’s company consisted of the captain, officers and surviving crew of El Gran Grifón, which was, I understand, the principal supply ship of the Spanish fleet.

Scotland was at that time an entirely independent neutral country and, while it had no quarrel with Spain, had undergone a religious Reformation which had taken a firm hold. Not only was the population of the country not interested in any form of alliance with a country which was violently opposing everything it now held dear but it did not much appreciate interference in its particularly complicated affairs. Nevertheless, the captain of the ship, one Juan Gómez de Medina, was allowed to come ashore with his officers to arrange purchase of supplies so that the ship’s company might have a sporting chance of getting back to Spain, the Armada having come completely to grief, including El Gran Grifón, which had had to be replaced by a less impressive craft purchased in the Northern Isles.

Although the unsolicited intervention of the kingdom of Spain was no more appreciated in the kingdom of Scotland than it was in the kingdom of England, the crew of El Gran Grifón were provided with what they required for their journey home and were wished God speed by the local minister of the Kirk, James Melville, who took advantage of the opportunity to admonish the ship’s officers for being “Papists” and meddling high-handedly in matters which did not concern them. To this day you can see what remains of El Gran Grifón’s wooden pay chest, which was incorporated in one of the walls of the manse which was constructed for James Melville shortly afterwards. This would always remind him of the day when he sent a great griffin away with a flea in its ear.

This historically inconsequential episode, which the King of Spain probably did not much enjoy reading about when he eventually received his report from the captain, possibly goes some way towards explaining my Scottish presbyterian attitude towards authoritarianism. Following years of learned sermons as stormy winds whistled about the rafters of the kirk, I take it as self-evident that effective and sustainably tolerable leadership is that of a leader who is regarded as and behaves like the first among equals (in ecclesiastical terms a shrewd minister rather then a fatuous bishop) and treats other leaders as equals within any established constitutional order, regardless of what that order may happen to specify.

If the rule of law is to be respected, it must be established by leaders who are no more and no less than first among equals and should be founded on sound principles, recognized and accepted as such. It should be possible to reform it if and when required, not only in principle but in practice, as it is liable to be rebelled against sooner or later if it cannot be reformed. Adversaries must always be respected and treated accordingly. You do not throw them into prison. You take them ashore and nourish them by coming to an accommodation with them. This is the way to harmonious co-existence. This is the basis upon which a truly enduring convivencia can be established in Spain. Not through constitutionally entrenched intolerance and inflexibility and not through throwing politicians into jail for thirty years.

At this point I should perhaps break the sad news to you that, despite the good intentions, practical assistance and well-meaning advice of the Scottish community upon whose mercy the ship’s company of El Gran Grifón had the good fortune to throw themselves, not many of them made it safely back to Spain, as their vessel, which had been promised safe passage by England, was attacked in the English Channel and run aground by the Dutch, whom the English had alerted to its whereabouts on the pretext that they had only promised that it would not be attacked by English vessels. From this we draw the invaluable lesson that you should never trust the English but that the Scots will always help you, provided there is something left in your pay chest.

Seriously, the lesson surely is that there is good will which can be harnessed, even to help Spain solve its problems, but first of all it is necessary for its leadership to get down off its high horse and recognize that help is required and to have the wisdom to accept suitable mediation, I venture to suggest.

Conducting trials which can all too easily be represented as political and throwing democratically elected politicians into prison will solve precisely nothing and will only make matters worse.

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