The ‘Insurrectionary way to Catalan independence is a possibility’: Interview with Benet Salellas
On the 4th anniversary of the Catalan independence referendum, Ben Wray speaks to Benet Salellas, lawyer for persecuted pro-indy leader Jordi Cuixart, about the reality of Spain’s judicial system, the latest botched effort to extradite Carles Puigdemont, and what route forward now for Catalan independence.
Catalonia has a rich history of radical lawyers, perhaps none greater than Sebastiá “Tiá” Salellas, who used the law to fight for the most marginalised groups and social movements in Catalonia for over thirty years. Heroically representing squatters, activists and, of course, independence supporters, Salellas still managed to fit in a career as a local politician and campaigner for innumerable causes to boot, never without his Che Guevara pin.
Tía Salellas passed away in 2008, and thus missed the times that Catalonia are currently living through, where lawyers that really believe in justice in every sense of the word are much in need. Thankfully, his son, Benet, is among those who have taken inspiration from his father.
After representing radical left pro-indy party CUP in the Catalan Parliament from 2015 until it’s suspension following the 1 October 2017 referendum, Benet Salellas returned to the day job to defend Jordi Cuixart, president of pro-independence organisation Omnium Cultural, when he was imprisoned and charged with sedition by the Spanish state in October 2017.
Cuixart was jailed by the Supreme Court for eight years in October 2019 along with eight other pro-independence leaders, sparking another round of protests and state repression. In June of this year, Spanish Prime Minister Pedro Sanchez pardoned the Nine, meaning they were free from prison but without their sentences being wiped. But that was by no means the end to the judicial battles.
The latest twist came on 23 September, when the former Catalan President, Carles Puigdemont, was surprisingly detained in Sardinia, on a trip to the Italian island in his role as MEP of the European Parliament for a Catalan folklore festival. Puigdemont’s lawyer said Spain’s European Arrest Warrant had expired, but the Spanish Supreme Court differed. The Sardinian judge decided to let him leave the country and return to Brussels, but he must appear before the court again on 4 October.
The Puigdemont fiasco hangs over the new pro-independence Catalan Government’s attempts to negotiate a referendum with Sanchez, a negotiation that few believe is going to lead to a happy ending. But how can Catalonia’s right to self-determination be secured, when the Spanish state remains implacably opposed?
To talk about all this and more, I caught up with Salellas at his Girona office. In this podcast we discuss:
01:25: Defending Jordi Cuixart at the Spanish Supreme Court
05:08: The pardons of the Catalan pro-independence leaders
10:23: The relationship between the judiciary and the state in Spain
16:18: Carles Puigdemont’s arrest and release in Sardinia
18:44: The negotiations between the Catalan and Spanish governments
22:07: Catalan independence strategy & tactics
30:27: The right to self-determination and the law
TEXT VERSION OF THE INTERVIEW BELOW
Bella Caledonia: Can you tell us a bit about that experience of defending Jordi Cuixart in his Supreme Court trial, and what lessons you learned about the Spanish judicial system from that experience?
Benet Salellas: We learnt a lot of things. It was a long trial. Before going there [to Madrid], I had the conviction that we were not in an ordinary court. We were in the Supreme Court and it was a political trial. My opinion before the trial was that we would have a very special experience and the rules that we used to have in the courts would not be respected in this case. That’s really what happened.
I was of the opinion that we could not have this trial in Barcelona because we were in a political trial that does not have any relationship with justice; it was another thing.
So that’s my experience with the court, but also the best part of that time in Madrid, was that during the four months of the trial we had meetings with hundreds of people who came to Madrid to express solidarity and their position against that trial. There was an international observation of the trial, and that included people from all around the world, who made reports and criticisms of that use of the justice system for political aims.
So my experience was very bad because I am a lawyer and I expect to have an experience of the court based on justice or something near to justice – [at least] discussing the law – and at the same time the position of a very important part of the international law community who were really impressed by what was happening in Madrid.
BC: The pardons of Cuixart and the other eight political prisoners in June is obviously not what you would ultimately want; you want an amnesty. Were the pardons a surprise to you, and was it a difficult thing to say we accept the pardons because obviously that’s not what you really believe should happen?
BS: As a lawyer, what I am working for is the freedom of Jordi Cuixart, and I’m glad that he’s free. I think that’s always important to remember – a man in jail is in a very different situation from a man in a freedom situation. So as a lawyer, that’s good.
However, as a citizen of this country I am not satisfied, because this is a forced solution. My interpretation is the Spanish Government is forced to make this pardon because the European community is pressing them, especially the Council of Europe, and I think that all the work that Amnesty and a lot of NGO’s and human rights organisations have done for years has resulted in this pardon.
But, after the pardon the political conflict remains there, and there are also thousands of [pro-independence] people who are having problems with trials, because they were defending Jordi Cuixart when he was on trial and against his sentence [by the court]. So, [the pardons] are only a very small solution, and I think that the main problem remains.
And when we were in the court we said all the political trials have two parts, one part is during the trial and the judicial process, and there is a second part after, which happens when a political trial generates a lot of opposition, demonstrations and campaigns. And I think this pardon is the second part of this trial and is the result of the struggle and the fight of the Catalan people and people around the world who were involved in defending the case of Jordi Cuixart.
BC: As you said, the judicial repression of the pro-independence movement continues. Were the pardons a watershed moment where politics would now takeover from the courts, or was it simply one moment and the repression will simply rumble on?
The structure and the institutions that provoked the repression are in the same position in the same way that they were in 2017; nothing changed. The judges are the same, the prosecutors are doing the same things with the same criminal politic, and the law is the same. There’s nothing that really changed in the structure of the state that allows and provokes the repression. The effect of the pardon does not have broad effects on how Catalan political life is going on.
BC: You mentioned the structure of the state, do you think that the relationship between the judiciary and the Spanish state is not just biased in terms of the Catalan independence, but there is a deeper problem there. For example, some have argued that the right-wing opposition in the Spanish state is using a strategy of ‘lawfare’ – the use of the courts to apply political pressure – not just in the Catalan case, but also to pressure elements of the Spanish Government. What is your analysis of the relationship between the judiciary and the state in Spain?
We know that the judiciary is one of the powers which has a very important continuity from the dictatorship to the democratic system. Not only because the people who were judges during the dictatorship kept being judges after the dictatorship, including the ones in the Supreme Court. There is also some kind of culture in this part of the system that is very, very conservative, and the values it has inside are very similar to the values of the dictatorship.
This is the case in very different aspects, but in the national question it is one of the areas which is very clear. Because the national imaginary of the dictatorship is very similar to the national imaginary of the judges today. I’m talking about the judges that are in the power positions in the Supreme Court (obviously in courts across Spain there are a lot of different judges). These judges are keeping this same point of view, and when they feel they are being attacked their answer is always with the words, the ideas, and the concepts of the dictatorship.
One of my obsessions is about public order. Jordi Cuixart and the rest of the people who were sentenced in 2019 were sentenced of the crime of sedition. In the Spanish system it is a crime of public order. When the court must explain why they think that the public order was in danger, how do they make the definition? They use the same definition that was in the public order law of 1959. That expresses the exact continuity from dictatorship to the present.
What’s the relation of this judiciary power to the government? Has the government some kind of possibility to change this or to make some difference? I think that they are the political parties which have the majority in the legislative arena. So they can make laws, they can change the laws, and the judge can make some conservative interpretation, but they can do [what they do] because the law allows them to do it.
So if they change the crimes, if they change the point of view that the judge must take for resolving the cases, then the power of this judiciary would be lower. But I think really that the Spanish left, the social-democratic people in Spain, they don’t want to discuss it, because there is a part of this social-democratic left who are also Spanish nationalist. They also feel attacked when the independence movement is growing.
So I think it is a very difficult problem for the Spanish state because it has this relationship [with the judiciary] because of the kind of transition we made from the dictatorship, and in some ways Francoism is alive.
BC: The former Catalan President Carles Puigdemont was arrested in Sardinia last week, the Spanish Supreme Court wanted him detained and brought to Spain, but he was subsequently released. What did you make of that?
BS: There are many occasions when people from the judicial world in Spain say ‘you cannot say there is Francoism in the judiciary power’, they tell us: ’you are not being honest about it’. And I think that the decisions that the European courts made in the case [of Puigdemont] shows how the perception and the point of view of the European judge is very different from the Spanish judge.
Is it possible that every judge – the German [judge] when Puigdemont was in Germany, the Belgian [judge] when they decided several times when Puigdemont was there, the Scottish [judge] when they decided about Clara Ponsatí, the Italian [judge] now about Puigdemont, and about Switzerland in the case of Marta Rovira – is it possible that they are all wrong except the Spanish judge? Or is it perhaps that who is wrong is the Spanish judge? Because something is wrong with the Spanish justice system if nobody anywhere in any European country is accepting their orders.
We have to remember that these orders are prepared to be very quick, very formal, and it is not usual that the national judge would deny this kind of order. If all these countries deny the order, it means the order is wrong.
BC: Negotiations between Catalan President Pere Aragones and Spanish Prime Minister Pedro Sanchez are currently ongoing, they are open-ended, Aragones says he wants an independence referendum at the end of the process, Sanchez says that definitely won’t happen. Is this just a game that both sides are playing, or is there more substance to it in terms of Catalonia’s constitutional future?
BS: I think it’s very clearly a political strategy from both. I think one of the interesting matters of the Catalan independence process the last time was that it involved a lot of people in the question of politics, and it made the political class become very near to the people, close to what the common people wants and likes. I think now we are coming again to what it was before, that politics goes in one way and the people go another. All of the discussions belongs to the political strategies and to the governments, I don’t listen to people in the streets talking about this dialogue table, nobody believes in it.
We are democratic, we obviously believe in dialogue, we think dialogue is the way of resolving conflicts, but if you want to have real dialogue from this Kingdom of Spain, of the ’78 regime, you must make a lot of pressure. You must have a lot of demonstrations, a lot of power in the institutions, to make that kind of pressure. In that situation, perhaps you can have a dialogue from equal to equal and you can obtain some kind of victory from the other side.
But if the work of Pere Aragones is to not mobilise people, not doing anything in the street, not building power in the institutions, and what you only do is to sit in a table to talk with the Kingdom of Spain, that is obviously stupid and I don’t think you can obtain anything from it. It is only a picture, a strategy, and a way of wasting time.
BC: You were in the Catalan Parliament from 2015 to 2017, when the parliament was suspended after the referendum. What lessons did you take from that experience about the strategy & tactics for achieving Catalan independence?
I’m not going to say anything new! I think what we discovered is that we have to make combined action from the institutions and from the streets, because both spaces need each other to make a counter-power. And then you have to be in a very good relationship with people outside, with international allies. Not with the states, because we know the states are not very supportive of independence processes, but making some kind of an alliance with political movements anywhere, that they can help us in our situation.
So that’s what I learned, these three areas: the institutions, the streets and this international work. That’s what we are not doing now. We are not doing good work internationally, we are not doing good work in the street, and I think the institutions they are not working really well.
To stick on the international point for a minute, it must have been a big disappointment to Catalans that the European Union and the member-states didn’t come to Catalonia’s aid and tacitly backed up the Spanish state. In that context, the international idea sounds good, but what real forms of power are you talking about when you say we need to build international support for the Catalan struggle?
I think that we have really some kind of sympathy in Scotland, but I’m not sure about the rest of the world. I think our case is not well known anywhere. So I think there is work to do to explain what is happening here and what is the real reason we are moving [towards independence]. And to change this kind of perspective that we are for independence because we are selfish nationalists, there is a very hard work to do to change this idea and fight against it.
For example in Italy it is difficult to make an alliance with the people because there is a hard message from the Spanish media and the Spanish intellectuals to show the Catalans as selfish; the same nationalism as Umberto Bossi. I think that is one of the things we have to change. And then we must organise all of this support from the outside to translate it into the European institutions, and move it in that direction.
I always explain that when Carles Puigdemont was arrested in Germany, and finally was released from the German courts, the people who helped him there when he was out in the street, who prepared the house, who received him, was the people from Die Linke – the leftist people in Germany. I think that’s an example to show that the European left must be involved in this question.
If we show that it’s a fight on human rights, a fight on democracy – and the Catalan fight is also a fight against fascism – if we can explain and express that we will have the help of the left people from around Europe. I think that could be a good way of working on it.
Oriol Junqueras, president of Esquerra Republicana and one of the nine political leaders who were imprisoned, has recently written that the lesson he has taken from the 2017 referendum is that it must be the “Scottish way” next time; “the path of pact and agreement, the path of the agreed referendum.” What do you think of that analysis?
All of us would like to have the ‘Scottish way’. Nobody wants to have in front of them a state like the Spanish state, but we have the Spanish state. We can not only express our imagination, we must work in the situation that we really have.
What we can learn about 2017 was that perhaps there was a lot of political people who were not really conscious about what the Spanish state is. They hoped that the Spanish state was going to sit in a table, that it was not going to hit the people in the street, that it was not going to put the Catalan government in jail. But that is what happened. So we now know who is the Spanish state, and if we want to have a referendum like Scotland, possibly we would have to fight the double of the Scottish. Because Scotland and the UK has some kind of democratic culture that the Spanish state doesn’t.
BC: That culture may be deteriorating somewhat at the moment in Scotland and the UK…
BS: Obviously I’m not going to say that the political system in the UK is perfect, but it is different because there is a culture of how the UK thinks about itself which is very different to how the Spanish Kingdom thinks about itself.
BC: From a legal perspective, is there a route to a Catalan referendum whereby it can happen, and the result be binding without the consent of the Spanish state?
BS: I think that if we are honest about international law, it talks more about force and material reality than law. So if you make a referendum and you have the control of your territory, international law allows you to be a new state. I can say it in another way: international law doesn’t say that you cannot make a referendum without the consent of the state. In the Kosovo opinion it was decided at the International Court of Justice that it is a possibility to access self-determination, if the state doesn’t allow you and if there is a case of human rights violation. So I think that’s a possibility, but the real discussion is how we make the referendum without the interruption of the Spanish police and military, and how do we keep control of this territory when we make this referendum and when we win it.
BC: So that would mean being prepared for quite a major geopolitical conflict?
BS: We had those discussions in 2017, it’s about what we call the insurrectional way. I’m not sure if it’s the best way of taking independence, and I’m not sure if the major part of the Catalan society is able to work in this direction, but you asked me if it is a possibility, and I think yes it is a possibility. What is not a possibility is to think you can make a referendum without the consent of the state and become independent without some kindof counter-power existing in the streets.
BC: Finally, how do you reflect on the past four years since the referendum, which has obviously been an intense period for everyone involved in Catalan politics, and where do you think the direction of independence politics is going in the coming years?
BS: I think I learned that history can be very quick. I have been an independentist since I was a teenager, and I think in the past we could never imagine that we would be in the moment that we are living, and the things we have lived in 2017, so I think that we can feel that sometimes history is very quick.
That is one reason why I am optimistic; although the situation that we have in this exact moment [is not good], things can change very quickly in the future – in a week, a month, a year? I don’t know.
Secondly, I’m really convinced that the Catalan question has a strong relationship with the economic situation of Catalonia. We cannot separate what has happened in the last ten years from the really big crisis that we have had since 2008. I think that we will be in crisis in the next years. I’m sorry for that but I think the Spanish state is not giving a solution to the economic situation, they are centralising all the time, they are only giving opportunities to the enterprises which work from Madrid. So the Catalan economy will be in a worse situation.
So I think if we are in a crisis, and we have a possibility to accelerate history, we can have the result that we want. It only depends on us.