How the arrest of Catalan separatists has aided their cause

Constitutions help protect citizens against abuses by lawmakers, but they can also be a straitjacket.

The standard question in interviews with the former Catalan president Carles Puigdemont was always whether he was prepared to go to jail. Now that he is fighting extradition to Spain from Belgium, it has never been more pertinent.

The reason for asking the question was obvious. The parties that chose him as regional president in January 2016 had vowed to follow an independence road map that would eventually result in breaking the Spanish constitution, even though a large majority of Catalans had backed it at a 1978 referendum. This was what Spaniards learned to call “the train crash” – and what most hoped would be avoided.

When I asked him the jail question 16 months ago, Puigdemont refused to answer directly but made it clear that he no longer felt bound by the rules of Spanish democracy. Yes, the current legal framework was set by the constitution, he said, but no, he would not accept the authority of its ultimate arbiter – the constitutional court – above that of the Catalan parliament.

So why did he think that he could ignore the constitutional court? Because it had struck out parts of a beefed-up autonomy charter that Catalans had approved at a referendum in 2006. That cart-before-the-horse arrangement (of voting first and allowing court challenges and changes later) is the root of the current conflict, since separatists insist that the court’s decision proves it is politically biased.

“We are not going to allow the decisions of the Catalan people to be submitted to the political whims of a court whose trajectory has left it discredited,” Puigdemont told me. His only masters would be the majority of separatist deputies elected by 47.8 per cent of the voters (Catalan electoral rules favour identity-driven rural voters – hence the parliamentary majority) in a 2015 vote billed as a plebiscite on independence.

Puigdemont’s “yes” and “no” answers were incompatible, leaving Catalonia in limbo until a clash between court and regional parliament actually happened.

At the time, Puigdemont’s stance could also be viewed as a high-stakes negotiating strategy – a threat that might bring the Spanish prime minister, Mariano Rajoy, and his People’s Party (which, while in opposition, had taken the autonomy charter to the constitutional court) to the table. When that did not happen, inertia took over.

Separatist leaders, following the logic of what is, in effect, a campaign of civil disobedience against Madrid, expected to end up in jail. Ignacio Escolar, the editor of the online newspaper eldiario.es, reports a conversation with one senior separatist who recognised that the independence that had been promised to voters was impossible (the end result has been the opposite, with Madrid imposing direct rule), but that the train crash would help the cause. “This will end up with political prisoners, which isn’t that terrible, because Spanish jails aren’t exactly like the ones in Latin America,” he said. That can be taken as courage, or foolhardiness.

The event that finally triggered the pile-up was the law passed to organise a “binding” referendum on 1 October. This was pushed through the regional parliament in September, bypassing a consultation procedure with Catalonia’s own council of statutory guarantees about whether it went beyond the parliament’s powers (which it clearly did). Opposition deputies walked out and, from then on, it was a purely separatist affair. The only posters hanging from balconies in Barcelona and elsewhere during the campaign asked for a “Yes” vote. The other side refused to play.

The referendum law was taken before the constitutional court, which suspended it and later declared it illegal. But Puigdemont insisted on going ahead. In legal terms, that turned the referendum into – at best – a misuse of tax money. At worst, it was an attempt to impose a new state on the majority of Catalans who had told pollsters that they did not back independence. That is why a judge in Barcelona ordered police to prevent public facilities, including schools, from being used on the day of the vote.

The vicious way that this was done boosted the separatist cause. So have the overhyped charges now being brought by Spain’s attorney general – of rebellion and sedition, with prison terms of up to 30 years. Yet laws were broken, consciously and deliberately. That is the logic of civil disobedience and explains why separatist leaders expected jail.

This has happened sooner than expected. A court’s decision to remand some former members of the Catalan government in custody plays into the separatist notion of victimhood. Rajoy knows this and hopes they will soon be bailed. But in political terms, having done nothing to defuse or meet wider Catalan demands for greater self-government and a referendum, the prime minister is now hiding behind the law. Like so many of his decisions, this may simply increase the separatist vote.

Constitutions help protect citizens against abuses by lawmakers, but they can also be a straitjacket. Major changes in Spain require approval by two-thirds of the parliament. Such changes – including a Catalan right to self-determination – must be reached by broad consensus, or not at all.

The closest thing that Catalonia has to a constitution of its own – the region’s charter of autonomy – also requires big changes to be approved by two-thirds of its deputies. Puigdemont did not have that kind of backing when he set out on the road to the biggest change of all: independence.

If he is jailed, will he be a “political prisoner” or merely a politician who is in prison for breaking the law? Amnesty International has refused to add his incarcerated cabinet members to its list of “prisoners of conscience”. As a result, some Catalan separatists have handed back their membership cards. Hundreds of thousands of them marched on 11 November, demanding the politicians’ release. Trials will not happen for many months, so this drama will keep on running for long after the December election.