Analysis: As Clara Ponsati fights for her freedom, the Spanish legal system goes on trial

As Clara Ponsati’s extradition hearings begin, Sean Bell looks at how the case is being pursued by her lawyer Aamer Anwar in a way which has explictly radical consequences: if Ponsati wins, it may be on the basis that the political and legal system under Mariano Rajoy’s government “still contains vestiges of Spain’s fascist past”.

AAMER ANWAR, renowned as both a lawyer and an advocate of human rights, has made clear that his defence of former Catalan minister and St Andrews professor Clara Ponsati against possible extradition to Spain will interrogate more than the academic’s culpability for dubious crimes against the Spanish state.

As Anwar and his legal team prepared for the first of two extradition hearings – this morning (12 April) and on 18 April, respectively – Anwar has stated publicly and repeatedly that the case before him and his client will hinge not just upon the many technicalities where Spanish, European and Scots law intersect, but on the principles which underpin them, and the question of whether they are sincerely enacted by those forces now seeking to hold Ponsati accountable to Spanish legal strictures.

Speaking to Reuters, Anwar said: “This case gives the possibility of putting another nation’s judiciary on trial in a UK court, and holding that nation to account.”

Echoing accusations articulated widely since the independence referendum of 1 October 2017 was marked by the bloody suppression of its participants and the subsequent legal travails of its organisers at the hands of Spanish authorities, Anwar asked: “Is the [Spanish] judiciary independent or is it tied into Francoism?”

“This case gives the possibility of putting another nation’s judiciary on trial in a UK court, and holding that nation to account.” Clara Ponsati lawyer Aamer Anwar

Anwar expanded upon his argument shortly before Ponsati’s preliminary hearing began on Thursday morning. The BBC, which has obtained a copy of European arrest warrant issued for Ponsati, reports that the Spanish authorities are seeking to establish Ponsati’s culpability for injuries inflicted upon Spanish security forces during the Catalan referendum. In response Anwar has said that the Spanish authorities have not acknowledged the violence committed on their own part, and again drew comparisons with Spain’s Francoist past.

“There is also no mention of the actions of several thousand Spanish police and 6,000 state security forces accused of carrying out brutal attacks on an unarmed civilian population at over 2259 polling booths,” Anwar said.

“In a civilised democracy police officers are the guardians of law and order, who take an oath to protect the public they serve. Sadly the Spanish state security forces’ behaviour on October 1st and since has been described as a return to the dark days of Francoism and what one would expect in dictatorship, rather than a modern European democracy.”

“The Spanish state security forces’ behaviour on October 1st and since has been described as a return to the dark days of Francoism.” Clara Ponsati lawyer Aamer Anwar

While the case of Ponsati has enflamed constitutional debate and political radicalism within Scotland, much as the ongoing imprisonment and pursuit of pro-independence Catalan politicians and activists has fuelled the movement behind Catalonia’s uncertain but defiant republic, Anwar has also been firm in his contention that his defence on Ponsati will be a purely legal one. Political rhetoric and organising – such as the extraordinary crowdfunding for Ponsati’s legal costs, much of which has come from Scottish sympathisers – is appreciated, but will remain separate from the efforts of Anwar’s team.

Despite its unending efforts to employ the Spanish legal system – from the police to the courts, both criminal and constitutional – as the guarantors of national unity, the government of Spanish Prime Minister Mariano Rajoy has defended Spanish legal institutions against growing accusations that they lack independence from Spain’s fiercely unionist political culture.

This perception extends beyond Catalonia; in the EU’s 2017 ‘Justice Scoreboard’, Spain came third to last amongst the EU’s 28 member-states, behind Slovakia and Bulgaria, on the public’s perception of the independence of its judges and courts.

Further questions about the Spanish Government’s adherence to the rule of law have been raised in light of the numerous, wide-ranging revelations of corruption that have engulfed the ruling Partido Popular, or People’s Party.

In late October 2017, the anti-corruption prosecutor Concepción Sabadell delivered a shocking report, culminating a decade-long investigation into illegal financing within the People’s Party. Sabadell confirmed that several regional branches of the party, including its national headquarters, kept sets of shadow books to log illegal commissions given by corporations in exchange for government contracts.

The beneficiaries of these payments included dozens of People’s Party politicians, who received bribes and unofficial supplements to their salary directly from the party treasurer, as well as the People’s Party itself, which used the illegally obtained money to finance its campaigns. This has raised questions about the legitimacy of Spanish elections.

Despite claims from Rajoy during his testimony on the matter that he was unaware of the corrupton scheme and had never received money relating to it, he was undermined when Manuel Morocho, chief inspector of the Spanish national police’s economic and fiscal delinquency unit, confirmed under testimony that there was evidence to suggest Rajoy had in fact received payouts. Morocho described his findings as “corruption in its purest form.”

READ MORE: Exclusive: Clara Ponsati lawyer says case ‘feels almost like David and Goliath’

As the case is ongoing, Anwar has understandably refrained from going into the specific details of his planned defence, but nevertheless, if it is pursued in the direction Anwar has already described, he will be assuming a position that is radical even in comparison with many of the Catalan republic’s most vociferous defenders: the argument that the Spanish legal system, and the political system which oversees it and functions under by its rules, has not only echoed the authoritarianism of the Franco era, but still contains vestiges of Spain’s fascist past.

So, is there any truth to Anwar’s contention? Does the spirit of Franco persist within the legal system of contemporary Spain, and if so, does its presence render it incompatible with the application of either Scots or European law?

Such an argument will doubtless keep legal scholars and historians busy for years to come without reaching an undisputed conclusion, but Anwar is not the first to suggest Francoist tendencies remain within the Spanish state to this day.

“So, is there any truth to Anwar’s contention? Does the spirit of Franco persist within the legal system of contemporary Spain, and if so, does its presence render it incompatible with the application of either Scots or European law?”

It is supremely relevant that the unforgiving legal approach pursued by Spanish authorities is rooted in the Spanish constitution of 1978, a document often seen as signalling in the nation’s transition to democracy following the death of Francisco Franco and the dissolution of his fascist regime.

In a somewhat technical sense, that regime continues, as it was never formally abolished by the Spanish state; the institutions of the Franco era were merely reformed, as old laws were replaced by the new and a constitution enacted, following a constitutional referendum.

READ MORE: Catalan Defence Committee Scotland launched to further solidarity efforts

The preamble to the 1978 constitution, written by the Republican veteran, essayist and politician Enrique Tierno Galván, guarantees both the human rights and the democratic expression of “all the peoples of Spain”. In the eyes of many, the suppression of the Catalan independence referendum – infamously declared illegal by Spain’s constitutional court – and the events that followed have placed the Spanish state in contravention of its constitution’s founding principles.

However, as Spanish unionists have commonly argued, the constitution is, in Section 2, based on the indissoluble unity of the Spanish state. Any referendum or political reform which would threaten or undo that would, theoretically, require a rewriting of the constitution unprecedented since the day it came into force. From here, the inherent contradiction - which both the nascent Catalan Republic and the Spanish Government have taken advantage of – becomes apparent.

Shortly before the 2017 independence referendum, roughly 150 lawyers and solicitors took part in a demonstration outside of the Tribunal Superior de Justicia de Cataluna (TSJC), endorsing the Catalan people’s democratic right to vote on the matter of their national independence.

In a statement, the demonstrators said it was their “duty to protect the rights of all citizens to their freedom of expression, the right of assembly, the freedom of the press, the right to the secret communication and the right of self-determination.”

The lawyers argued that these were fundamental rights, previously guaranteed by the Spanish legal system, which were now being overruled by the Spanish Government’s suppression of the vote.

A spokesperson for the group said at the time: “The judges, magistrates, prosecutors and in general all the agents of the authority should be brave, to apply the law and justice without any political imposition, to dictate resolutions adjusted to law, to apply the international law to which the Spanish state is due under the current international treaties that it has signed and the jurisprudence that emanates from the international court of justice, to guarantee the right of citizens to exercise their rights and freedoms with all the guarantees. Do not be scared!”

“Extradition can be ordered only if a court considers that to do so is compliant with a person’s rights under the European convention on human rights.” Justice secretary Michael Matheson

Variations on this argument were echoed in the Scottish Parliament on 27 March, when the issue of Clara Ponsati’s extradition was first raised during Topical Questions. Responding to Green MSP John Finnie, who argued that “the law does not operate in isolation” and that during its existence, the regime of apartheid South Africa could have claimed to be entirely legal in its actions, Justice Secretary Michael Matheson answered by pointing to the provisions of the Extradition Act 2003 with regard the European arrest warrant issued against Ponsati.

“There are a number of prescribed questions that courts must address,” Matheson said. “Among other matters, for example, extradition can be ordered only if a court considers that to do so is compliant with a person’s rights under the European convention on human rights. The courts must therefore be satisfied on a number of prescribed questions prior to making a decision on any European arrest warrant that is being contested, and a key part of that is ensuring that extradition complies with the European convention on human rights.”

Speaking to CommonSpace shortly afterwards, Aamer Anwar indicated that this possible conflict between Spanish law and European legislation concerning human rights, which Scotland remains beholden to until Brexit comes into effect, was something that he hoped that the Scottish Government and the UK Government would be taking up with the Spanish authorities, saying that he believed “the Spanish Government is abusing the system of the European arrest warrant, and trying to draw European into complicity in the persecution of Catalan politicians.”

More generally, the Catalan independence movement has often stressed the continuities that exist between the Francoist dictatorship and modern Spanish democracy, the most obvious of which is arguably the Spanish monarchy, which until 2014 was embodied by the Franco-appointed king Juan Carlos.

READ MORE: Catalan activist Anna Arqué: “Freedom is something you fight for every day”

Many Catalan politicians and activists have also pointed to the structural deficiencies within the present system of Catalan semi-autonomy, which some have argued have not been adequately addressed since the death of Franco.

The political institutions of Catalonia, along with the ‘Catalan Countries’ of Valencia and the Balearic Islands, were abolished or dismantled during periods of repressive and authoritarian rule. From 1714 to 1931, Catalonia’s regional government, parliament and legal system were all brought to an end, only reinstituted during the brief period of the Spanish Second Republic. The Francoist regime, which sought to wipe out all expressions of Catalan national identity, once again dismantled these institutions from 1939 to 1977.

Speaking to CommonSpace in 2017, the Catalan republican activist Anna Arqué argued that the continuity of this suppression was still a daily reality for Catalonia: “We are still suffering from the consequences of the occupation in 1714.”

The modern constitutional crisis engulfing Spain as a result of Catalonia’s declaration of an independent republic began in earnest in 2006, when the People’s Party – then in opposition, now the party of the Spanish Government – filed an appeal with the Spanish constitutional court against a newly approved statute of autonomy for the region.

Since their success in suppressing increased autonomy for Catalonia within the Spanish state, the People’s Party, along with its political allies within Spanish unionism, has pursued a more-or-less consistent strategy of using the Spanish judiciary for political ends. Since the referendum, Spain has imprisoned numerous Catalan politicians and activists for their participation in organising the vote – generally on charges of sedition, rebellion, or misappropriation of public funds – and has unforgivingly pursued those who have sought freedom in exile elsewhere in Europe.

“Part of that largely unspoken distinction is fed by the legacy of the ‘pacto de olvido’, or the ‘pact of forgetting’: a collective political silence by the dominant Spanish political parties in 1977 to avoid dealing with the legacy of the Franco era.”

Yet this strategy of legal oppression has extended far beyond the issue of Catalonia: in recent years, figures as diverse as comedians, singers, puppeteers and Twitter users have been brought to court on charges of “extolling terrorism” or “offending religious sentiments”, while journalists have been charged under the vague heading of “disobeying authority”. Pro-independence Catalans are far from the only ones who have argued that such legal constraints are reminiscent of the tactics employed by the Franco regime.

The revitalisation of Catalan nationalism in recent years has been greeted by furious opposition from Spain’s small but vocal contingent of Francoist sympathisers, with unionist counter-demonstrations following the 2017 referendum frequently featuring Francoist flags, slogans and salutes from modern Spanish fascists.

READ MORE: Imprisoned Catalan leaders appeal to United Nations panel

While the ruling People’s Party has often been slow to condemn such public Francoist expressions – and has resisted attempts to render public displays of fascist sympathy illegal, as Germany does – a distinction is commonly drawn between the presence of Francoism in Spanish public life and within its legal and political system.

Part of that largely unspoken distinction is fed by the legacy of the ‘pacto de olvido’, or the ‘pact of forgetting’: a collective political silence by the dominant Spanish political parties in 1977 to avoid dealing with the legacy of the Franco era, including all recriminations, investigations and even conversation concerning the killings and injustices that signified the rule of Spanish fascism.

The pact was codified in a 1977 amnesty law, but this was partially walked back in 2007 under what is commonly referred to as the ‘Historical Memory Law’, which in addition to recognising the victims of Francoism, rejects the legitimacy of laws passed and trials conducted by the Francoist State.

Despite this, efforts to probe more deeply into the Francoist past have been met with stubborn resistance, most notably in the case of crusading Spanish judge Baltasar Garzon, who faced charges of overstepping his authority when he ordered an investigation into the murders of more than 100,000 people by Francoist forces.

Direct lines of continuity between the Franco era and the present day exist, but they remain slippery and their implications difficult to assess. Compelling arguments have been made that Spanish actions over the past year contravene both the European convention on human rights and the United Nations’ position on issues such as arbitrary detention; however, should Anwar seek to establish proof that the ghost of Franco continues to haunt modern Spain, he will have to delve into a variety of murky historical legacies, which many in Spain would prefer remain undisturbed.

Picture courtesy of Lauren Tucker

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