The traps in the letter to Rajoy and the king

The latest coup de théâtre by secessionists has come in the form of a letter that representatives of Catalonia’s three main institutions, the Generalitat, the parliament and the City of Barcelona, are using to ask Spanish Prime Minister Mariano Rajoy – King Felipe VI was CC’d on it– for a last-ditch effort to negotiate a referendum on self-determination. But concealed behind an appearance of good faith is a text full of traps and political, legal and communication half-truths.

The real recipient

The first trap involves a lot of institutional disloyalty. The text was sent simultaneously, if not even earlier, to the Financial Times, with the goal of seeing it published on Friday morning and distributed to a wide international audience. It does not look like it is the sincere will of Carles Puigdemont, Oriol Junqueras, Carme Forcadell and Ada Colau to convince Mariano Rajoy to seek a negotiated way out of the crisis, but rather to project an international image that they are the ones trying until the last minute to find a peaceful, negotiated solution.

Negotiating facts on the ground

The signatories ask Rajoy, and the king while they are at it, for the possibility of negotiating a referendum on self-determination between the Catalan and central governments, so that the Catalan people may be heard. Nowhere do they explain that this decision has already been taken unilaterally, ignoring the warnings of the Constitutional Court. Nowhere does it say that there is already a date for the ballot, October 1, or that a campaign is underway using public funds. Not the slightest mention is made of two laws, one facilitating the referendum and the other paving the way for a transition into an independent republic, that have in effect already created a legal reality that contravenes Spain’s constitutional reality, and goes against the rights of over half of Catalans and their legitimate representatives.

A “shot down” statute

The letter alludes to the current regional charter, the Catalan Statute of Autonomy, as a law voted in by the citizens and “shot down” by the Constitutional Court. Without questioning the broad consensus among politicians and jurists that point at this decision as the genesis of much of the current institutional crisis, the fact is that the Statute remains in force and the top law of the land after the Constitution, which sets out Catalonia’s current powers of self-rule. To read the letter, one might assume that all laws in Catalonia have been eliminated in a single blow.

“Self-determination” without euphemisms

The letter talks about “the reiterated demand by a broad representation of members of parliament and Catalan society” for a referendum on self-determination. They are no longer shying away from using a term that, until now, they had been avoiding with euphemisms such as “the right to decide.” The pro-independence movement knows that international law is very strict about the concept of self-determination, which involves colonial situations that Catalonia has nothing in common with, such as Western Sahara or French Polynesia. None of the main groups in the Catalan parliament included this demand in their platform during the last election campaign, and the constant surveys conducted in Catalan society do not place self-determination – which is not the same as the desire to express one’s will in a consultation – as a citizen priority.

“Unprecedented repression”

The apparent good faith of the letter is not helped by the terms used to describe the Spanish state’s response to the separatist challenge. It talks about “an unprecedented offensive of repression” that is illustrated with half-truths and exaggerations. For instance, the signatories accuse the Spanish government of preventing public events, yet only a few hours earlier separatists, with Catalan premier Puigdemont at the helm, had held a referendum rally in Tarragona that attracted thousands of people to witness the beginning of a pro-independence campaign declared illegal by the Constitutional Court. And everything went smoothly, with no police intervention of any sort.

The letter also talks about “threats against news organizations” whom the Spanish justice system has told not to run advertising for an act of disobedience. It would seem, to read the text, that a “Turkish-style” repression is underway in Catalonia where nothing is what it seems. Just take a look at the pro-independence media in Catalonia, where “the arrest of 75% of the mayors of Catalonia” is already being described as a given, although not a single arrest has in fact taken place. In fact, most of the mayors have expressed a willingness to appear before prosecutors to explain why they intend to help prepare the referendum. Any hypothetical arrest would only have the temporary mission of making them meet their legal obligation of appearing before the justice system when summoned to do so.

“Calling a referendum is no crime”

It is true that the Constitutional Court rejected the criminal reform initiated by the government of José María Aznar, who included calling a referendum on its list of crimes. At the time it was a preventive move to stop the offensive by the Basque government under former premier Juan José Ibarretxe. The court used formal arguments that censored the way in which a new type of crime had been rushed into the country’s criminal legislation, almost through the back door. Today’s letter clings to this decision to affirm that “the Spanish Criminal Code confirms that calling a referendum, even if it lacks consensus, is no longer a crime.” This is a half-truth that conceals the deep truth of the matter. The people behind this crisis are being investigated for other crimes: disobedience, unlawful decision-making by a public official and embezzlement of public funds. It is not about the referendum itself, but about the procedure to make it happen and about the content, which the Generalitat does not have powers over.

The organizers of the referendum accept the fallacy that the Catalan people are “sovereign” and may decide their own future, bypassing the fact that the Constitution expressly awards national sovereignty to “the Spanish people” in Section 1. And therein lies, ultimately, the real genesis of this great illegality. But there is no reference to that in the letter, either.

English version by Susana Urra.