While nearer home, the peo­ple of Kash­mir and Pun­jab are strug­gling for the right to self-de­ter­mi­na­tion against heavy odds and a grossly in­hu­man ap­proach by the In­dian gov­ern­ment, it is in or­der to un­der­stand how the world over, gov­ern­ments are mal­treat­ing peo­ples with a sep­a­rate his­tory and who as­pire for na­tion­hood. This is the cur­rent state of the peo­ple and lead­ers of Cat­alo­nia, which wants to se­cede from Spain. WSN pub­lishes this piece by scholar-ac­tivist Dr Paul New­mann, which will serve the need to high­light the Cat­alon­ian cause as well as en­able oth­ers strug­gling for the right to self-rule to learn sig­nif­i­cant lessons in how to tackle rogue states. 

THE REF­ER­EN­DUM IN CAT­ALO­NIA, which is part of Spain was or­ga­nized on the first of Oc­to­ber 2017 and was de­clared il­le­gal by Spain’s Con­sti­tu­tional Tri­bunal and boy­cotted by those op­posed to the in­de­pen­dence of the re­gion. Thus far, 12 pre-in­de­pen­dence Cat­alon­ian politi­cians have com­pleted tri­als un­der Span­ish laws.

The pub­lic pros­e­cu­tion in the Supreme Court of Spain has used SPAN­ISH po­lice re­ports to craft a nar­ra­tive that speaks of “vi­o­lence”, “re­bel­lion” and “pub­lic money laun­der­ing”. The Cat­alon­ian de­fence team said their clients merely acted on “the man­date from the peo­ple” and never used vi­o­lent means to de­clare or prop­a­gate in­de­pen­dence.

Ar­ti­cle 92 of the Span­ish con­sti­tu­tion has pro­vi­sions for the King of Spain to per­mit a ref­er­en­dum. In the mod­ern world, where the monar­chy is de­funct, a Cat­alon­ian can­not be­come the King, so by its very na­ture, this pro­vi­sion is flawed.

In the 21st cen­tury Eu­rope and across the world, ex­er­cis­ing the right to self-de­ter­mi­na­tion, ei­ther peo­ple de­cide about their own fu­ture, or there will be no per­ma­nent so­lu­tion to the prob­lem in var­i­ous parts of the world in­clud­ing Kash­mir and Pun­jab.

Notwith­stand­ing the pit­falls of democ­racy, the mod­ern world car­ries on gov­er­nance through the ‘will of the peo­ple’. An over­whelm­ing 90 per cent of Cat­alo­ni­ans, in the ref­er­en­dum, ex­pressed the de­sire for an in­de­pen­dent Cat­alo­nia. Of the 10 per cent, many did not vote fear­ing state per­se­cu­tion and un­leash­ing of state-spon­sored vi­o­lence on Cat­alon­ian civil­ians, which ul­ti­mately hap­pened af­ter the vot­ing and de­clar­ing of the re­sults.

In the run-up to the ref­er­en­dum, Spain sent thou­sands of troops into Cat­alo­nia to seize bal­lot pa­pers and ar­rest pro-in­de­pen­dence of­fi­cials. Web­sites in­form­ing Cata­lans about the elec­tion were shut down.

On the day of the ref­er­en­dum, the po­lice used rub­ber bul­lets and trun­cheons to con­trol the crowds and keep peo­ple out of the streets. Thou­sands were in­jured in what the Times de­scribed as “one of the gravest tests of Spain’s democ­racy since the end of the Franco dic­ta­tor­ship.“¹

At the same time, the per­pe­tra­tors of vi­o­lence dur­ing the ref­er­en­dum polling and the af­ter­math, in this case, the Span­ish po­lice, are be­ing tried at the provin­cial courts at Barcelona, while those po­lit­i­cal pris­on­ers are di­rectly sent to the Supreme Court, vi­o­lat­ing the prin­ci­ple of nat­ural jus­tice.

The only vi­o­lence that oc­curred dur­ing the ref­er­en­dum on 1 Oc­to­ber was com­mit­ted by the Span­ish po­lice or Guardia Civil, and not by the Cata­lan gov­ern­ment.

In the 21st cen­tury Eu­rope and across the world, ex­er­cis­ing the right to self-de­ter­mi­na­tion, ei­ther peo­ple de­cide about their own fu­ture, or there will be no per­ma­nent so­lu­tion to the prob­lem in var­i­ous parts of the world in­clud­ing Kash­mir and Pun­jab.

Spain, which had never be­fore in­voked Ar­ti­cle 155 of its con­sti­tu­tion, al­low­ing it to sus­pend Cat­alo­ni­a’s po­lit­i­cal au­ton­omy, but it did so in Oc­to­ber 2017 to crush the le­git­i­mate as­pi­ra­tions of the Cata­lan peo­ple.

The rights to free­dom of peace­ful as­sem­bly and of as­so­ci­a­tion:

The rights to free­dom of peace­ful as­sem­bly and as­so­ci­a­tion are en­shrined in a num­ber of in­ter­na­tional and re­gional hu­man rights in­stru­ments, from Ar­ti­cle 20(1)) of the Uni­ver­sal De­c­la­ra­tion of Hu­man Rights and Ar­ti­cle 21 and 22 of the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights. Sim­i­lar pro­tec­tions ex­ist in a num­ber of re­gional hu­man rights in­stru­ments as well, in­clud­ing Ar­ti­cle 12 of the Char­ter of Fun­da­men­tal Rights of the Eu­ro­pean Union.

The right to free­dom of peace­ful as­sem­bly is the right to gather pub­licly or pri­vately and col­lec­tively ex­press, pro­mote, pur­sue and de­fend com­mon in­ter­ests.

This right in­cludes the right to par­tic­i­pate in peace­ful as­sem­blies, meet­ings, protests, strikes, sit-ins, demon­stra­tions and other tem­po­rary gath­er­ings for a spe­cific pur­pose. States not only have an oblig­a­tion to pro­tect peace­ful as­sem­blies but should also to take mea­sures to fa­cil­i­tate them.

Every­one has the right to peace­ful as­sem­bly. States may not limit this right based on race, colour, sex, lan­guage, re­li­gion, po­lit­i­cal or an­other opin­ion, na­tional or so­cial ori­gin, prop­erty, birth or any other sta­tus.

The right to free­dom of peace­ful as­sem­bly is the right to gather pub­licly or pri­vately and col­lec­tively ex­press, pro­mote, pur­sue and de­fend com­mon in­ter­ests.

In­ter­na­tional law only pro­tects as­sem­blies which are peace­ful, and sig­nif­i­cantly, the peace­ful in­ten­tions of those as­sem­bling should be pre­sumed.

Dur­ing the ref­er­en­dum in Cat­alo­nia, there was suf­fi­cient ev­i­dence to val­i­date that those peo­ple who had as­sem­bled at Barcelona were very peace­ful and there was no sign of any vi­o­lence. A good num­ber of women and men, well above the age of 60, par­tic­i­pated with­out any fear and ex­er­cised their right to free­dom of peace­ful as­sem­bly.

The Span­ish au­thor­i­ties con­verted the right to as­sem­bly and demon­stra­tion, into a crime of re­bel­lion. Spain grossly erred be­cause nei­ther the events of 20 Sep­tem­ber 2017 nor those of 1 or 3 Oc­to­ber 2017, led to the kind of vi­o­lence men­tioned in Ar­ti­cle 472 of the Span­ish Crim­i­nal Code as this re­quired a vi­o­lent pub­lic up­ris­ing which never hap­pened.

Ac­cord­ing to the Uni­ver­sal De­c­la­ra­tion of Hu­man Rights, free­dom of ex­pres­sion is the right of every in­di­vid­ual to hold opin­ions with­out in­ter­fer­ence and to seek, re­ceive and im­part in­for­ma­tion and ideas through any me­dia and re­gard­less of fron­tiers.

Par­tic­i­pa­tion rights are in­ex­tri­ca­bly linked to other hu­man rights, such as the rights to peace­ful as­sem­bly and as­so­ci­a­tion, free­dom of ex­pres­sion and opin­ion and the rights to ed­u­ca­tion and to in­for­ma­tion. The right to, di­rectly and in­di­rectly, par­tic­i­pate in po­lit­i­cal and pub­lic life is im­por­tant in em­pow­er­ing in­di­vid­u­als and groups and is one of the core el­e­ments of hu­man rights-based ap­proaches aimed at elim­i­nat­ing mar­gin­al­iza­tion and dis­crim­i­na­tion.²

Ac­cord­ing to the Uni­ver­sal De­c­la­ra­tion of Hu­man Rights, free­dom of ex­pres­sion is the right of every in­di­vid­ual to hold opin­ions with­out in­ter­fer­ence and to seek, re­ceive and im­part in­for­ma­tion and ideas through any me­dia and re­gard­less of fron­tiers.

It is a well-doc­u­mented fact that the Span­ish po­lice fired blank car­tridges and rub­ber bul­lets, se­ri­ously in­jur­ing a per­son and caus­ing him to lose sight in one eye. Eas­ily vis­i­ble was the bran­dish­ing of the ba­ton by the po­lice on women and men who were on the streets.

Many lead­ing hu­man rights groups have al­leged ex­ces­sive use of force by the Span­ish po­lice, which was de­ployed by the cen­tral au­thor­i­ties and which or­dered to halt the vote, in part by seiz­ing bal­lot ma­te­ri­als, and in oth­ers, they used ba­ton-charges against peace­ful demon­stra­tors out­side polling lo­ca­tions,

Is the Span­ish Ju­di­ciary in­de­pen­dent? 

The 12 judges of the Span­ish Supreme court who sat on the 20-mem­ber Gen­eral Coun­cil of the Ju­di­ciary which over­saw the courts were not di­rectly elected by their peers, but ap­pointed through a three-fifths vote in the par­lia­ment, as with the other eight mem­bers.³

Supreme Court judges are ap­pointed by the Gen­eral Coun­cil of the Ju­di­ciary (CGPJ), -the body elected by the Span­ish par­lia­ment, in a process which has been chal­lenged due to po­lit­i­cal in­ter­fer­ence, which can po­ten­tially jeop­ar­dize the in­de­pen­dence of the high ranks of the ju­di­ciary, par­tic­u­larly in po­lit­i­cally sen­si­tive cases.

The Coun­cil of Eu­rope has crit­i­cized that this cur­rent pro­vi­sion of the Span­ish con­sti­tu­tion and ex­perts have rightly ar­gued that this arrange­ment in­creases the risk of po­lit­i­cal in­flu­ence.

The highly po­lit­i­cal na­ture of the on­go­ing crim­i­nal pro­ce­dure is ev­i­denced by the fact that the far-right po­lit­i­cal party VOX is tak­ing part in the pri­vate pros­e­cu­tion.

Pre­trial de­ten­tion:

The right to per­sonal lib­erty, in or­der to be com­pat­i­ble with in­ter­na­tional stan­dards and the pre­sump­tion of in­no­cence, pre­trial de­ten­tion must only be ap­plied as a last re­sort. Pre-trial de­ten­tion con­sti­tutes a dis­pro­por­tion­ate re­stric­tion on the fun­da­men­tal rights to free ex­pres­sion, peace­ful as­sem­bly and per­sonal lib­erty.

Many in­ter­na­tional hu­man rights or­ga­ni­za­tions who have ex­am­ined the Cat­alon­ian case thor­oughly have con­cluded that the charges against those de­tained are un­founded and must, there­fore, be dropped.

Ide­o­log­i­cal Free­dom:

Sec­tion 16 of the Span­ish Con­sti­tu­tion states that “Free­dom of ide­ol­ogy, re­li­gion and wor­ship is guar­an­teed, to in­di­vid­u­als and com­mu­ni­ties with no other re­stric­tion on their ex­pres­sion than may be nec­es­sary to main­tain pub­lic or­der as pro­tected by law”.

In the case of the de­tained lead­ers, it is very clear that all of them stood for ide­ol­ogy, the ide­ol­ogy that rep­re­sents the free­dom to live and ex­ist as a peo­ple -of the peo­ple of Cat­alo­nia. They stood for the ide­ol­ogy of up­hold­ing the Right to self -de­ter­mi­na­tion, en­shrined in all hu­man rights statutes, from the be­gin­ning of the twen­ti­eth cen­tury.

Every­one has the in­her­ent right to self-de­ter­mi­na­tion; the Span­ish au­thor­i­ties are ques­tion­ing this very ba­sic right and have im­pris­oned nine Cat­alon­ian po­lit­i­cal lead­ers as po­lit­i­cal pris­on­ers. Spain has a con­flict of in­ter­est in this trial. Spain is the sixth-worst mem­ber-state in the EU’s ju­di­cial in­de­pen­dence per­cep­tion in­dex.⁴

The Span­ish state forces have so far en­joyed com­plete im­punity and there is no guar­an­tee that it will not be ex­tended. Keep­ing these events and the past his­tory of the Span­ish ju­di­ciary in view, it is per­ti­nent that if jus­tice and truth have to pre­vail, the case has to be shifted to a neu­tral venue and un­der an in­ter­na­tional tri­bunal.

Spain has oblig­a­tions to pro­tect free­dom of ex­pres­sion, in­clud­ing po­lit­i­cal ex­pres­sion, un­der Ar­ti­cle 10 of the Eu­ro­pean Con­ven­tion on Hu­man Rights (ECHR) and Ar­ti­cle 19 of the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights (IC­CPR); and free­dom of peace­ful as­sem­bly and as­so­ci­a­tion un­der Ar­ti­cle 11 ECHR and Ar­ti­cle 21 and 22 IC­CPR.⁵

Even the al­le­ga­tion of laun­der­ing of pub­lic money is false. Charg­ing lead­ing politi­cians, ac­tivists and so­cial work­ers who have a very high rep­u­ta­tion in so­ci­ety with sedi­tion and laun­der­ing of pub­lic money is an ab­surd charge with com­plete dis­re­spect to hu­man rights.

Every­one has the in­her­ent right to self-de­ter­mi­na­tion; the Span­ish au­thor­i­ties are ques­tion­ing this very ba­sic right and have im­pris­oned nine Cat­alon­ian po­lit­i­cal lead­ers as po­lit­i­cal pris­on­ers. Spain has a con­flict of in­ter­est in this trial. Spain is the sixth-worst mem­ber-state in the EU’s ju­di­cial in­de­pen­dence per­cep­tion in­dex.

Cata­lan is the tenth most-spo­ken lan­guage of Eu­rope and their unique iden­tity needs to be pro­tected.

Un­con­di­tion­ally the Span­ish gov­ern­ment must im­me­di­ately re­lease all po­lit­i­cal pris­on­ers and suit­ably com­pen­sate them for the pe­riod of il­le­gal con­fine­ment and de­ten­tion. Spain must with­draw all friv­o­lous charges and rec­og­nize the vic­tory of the ma­jor­ity who ex­er­cised and won the right to self-de­ter­mi­na­tion.

Foot­notes:

1. https://​www.wash­ing­ton­post.com/​news/​world­views/​wp/​2017/​09/​30/​cat­alo­nia-in­de­pen­dence-ref­er­en­dum-spain/?​ut­m_term=.a61681e49aa0
2. https://​www.ohchr.org/​EN/​Is­sues/​Pages/​Equal­Par­tic­i­pa­tion.aspx
3. https://​free­dom­house.org/​re­port/​free­dom-world/​2018/​spain
4. http://​www.cata­lan­news.com/​so­ci­ety-sci­ence/​item/​spain-sixth-worst-eu-mem­ber-state-in-per­cep­tion-of-ju­di­cial-in­de­pen­dence
5. https://​www.icj.org/​spain-trial-of-cat­alon­ian-lead­ers-im­per­ils-hu­man-rights/

About the Au­thor: Dr. Paul New­man is a Pro­fes­sor from Ban­ga­lore spe­cial­is­ing in con­flicts, right to self-de­ter­mi­na­tion, refugee stud­ies and hu­man rights is­sues. He was one of the four pub­lic speak­ers at the Per­ma­nent Peo­ple’s Tri­bunal on Sri Lanka at Dublin. He at­tends the UN Hu­man Rights Coun­cil at Geneva cham­pi­oning the cause of Na­tions fight­ing for Self De­ter­mi­na­tion. In Au­gust 2018 he ad­dressed the 1st Yazidi Geno­cide Con­fer­ence and is also an In­ter­na­tional Ob­server on the Cat­alon­ian ref­er­en­dum case which is on­go­ing in Spain. He has au­thored sev­eral books on Ee­lam Tamil strug­gle for a sep­a­rate home­land and writ­ten many ar­ti­cles on hu­man rights is­sues.