Don Quixote meets Humpty Dumpty in the Spanish judiciary

So, in the end, Madrid withdrew the Euroorder against Clara Ponsatí and Carles Puigdemont for an offence which translated into Scottish and German law as Treason. Such malfeasance is, of course, more suited to a Walter Scott novel than the XXI century. But what other accusation could we expect from a country where the confusion between romance and reality is so deep-seated? Spain’s ambassador for language and culture — the Instituto Cervantes — is, for example, named after a famous writer. And how apt, then, that his masterpiece, Don Quixote, warns precisely of the consequences of fiction impinging upon the everyday.

In a fit of derangement, the errant knight imposes chivalric make-believe upon the social actuality of his time. As noble champion of “freedom”, he releases fettered prisoners even though they have been rightly convicted. Alternatively, when reality becomes too banal for his tastes, a simple country lass is transformed into an enchanted damsel in distress and a lowly barber’s basin into the golden helmet of a Moorish king — a conceptual paradox resolved magisterially by the neologism “basinelmet”; or, in other words, the simultaneous acceptance of fact and fiction.

Evidently, the judges of Spain’s Supreme Court inhabit a similarly quixotic world. First, they rule the conviction of two rappers justified on the grounds that their compositions constitute a “glorification of terrorism” and “insults to the crown.” Much like the man from La Mancha, their honours find difficulty in distinguishing between allusive discourse, on the one hand, and everyday parlance on the other. There is a world of difference, for example, between an artistic composition and a manifesto. Whilst a statement in support of a particular terrorist group would invite appropriate sanction, in the context of literature, theatre, film or song a text acquires a creative significance.

Fortunately, unlike in Spain, the law in Great Britain can distinguish between fact and fantasy. Take the hilarious example of Bob Nylon and the Elastic Band. The front cover of their 2003 album showed the group in bed with Pope Paul II, a sheep, Hugh Grant and the recently departed Queen Mother. More, in one of the songs the much-loved royal was lauded as the perfect candidate for sodomy. Communicating these words and images at a republican convention might run the risk of prosecution. However, in the context of a concert such action would be quite inappropriate. (There is, thankfully, no crime of bad taste, or the courts would be overwhelmed.) Like ‘Punk Rock’ such ejaculations belong to the provocation of performance. And, six years later, the only sanction meted out to one of the boys of the Elastic Band was his election as a Member of Parliament and his promotion thereafter to Minister of the Constitution and Vice-President of his party.

And yet is it not perverse that the judges of the same Supreme Court should abandon literality when it suits them and revert to quixotic fantasy to justify the imprisonment of a good part of the former Catalan cabinet while the rest are forced into exile?

The first step down the yellow-ribbon road was the ridiculous charge of “violent rebellion”. As the wider world witnessed early last October — and lawyers throughout Europe have reiterated—, there was patently no violence (or even threat of violence) visited by Catalan politicians upon anyone. Intimidation and brutality were the prerogative of the Spanish (not Catalan) police. However, again following Don Quixote, if the facts don’t fit then simply invent a scenario that does. In this context, the logic in accusing Professor Ponsatí and her colleagues of being responsible for a “violent and public uprising” is as warped as blaming the organisers of the Civil Rights March in Derry for the Bloody Sunday murders by the British Army. Or, in Cervantine terms, the windmills of passive resistance have become transfigured by the Supreme Court into monsters of violent rebellion. Small wonder, then, that their Euroorders have been met with incredulity across the continent.

Many legal experts, including the author of the relevant provision of the penal code, are agreed that the accusation is completely unwarranted. The appropriate charge, they insist, would be civil disobedience. Just like Humpty-Dumpty, however, when Spanish judges use the term “violent rebellion” it means just what they want it to mean. Or, as the perilously perched egg advised, the question is “to be master, that’s all.” And there is no doubt about who is the master in Spanish law. State-wide parties in Madrid, which have alternated in power since the death of Franco, appoint ten of the twelve members of the Constitutional Tribunal. They also elect all members of the General Council of the Judiciary which, in turn, decides appointments to the Supreme Court. A veritable government by judges — and by judges who bear a political birthmark or, as the Spanish would say, share the same DNA. The menace of political interference to judicial independence, flagged up by a report of the Council of Europe in 2016, has now been made crystal clear.

Justice through the looking glass then best explains the eccentricity of Spain’s legal system. In the Euroorder issued against Catalan exiles, Judge Llarena also specified a charge of misuse of public funds to the tune of 1.9 million euros in the organisation of the illegal referendum. The former Spanish Chancellor and Prime Minister insisted, however, that not a single euro of public money was directed towards this end. Judge and ministers were at loggerheads until quixotic fantasy once again took over and ministers concocted a suitable “basinelmet” by which both positions were considered correct. Not surprisingly, this resolution failed to convince judges in Belgium and Germany. And it does not take a legal genius to see why Professor Ponsatí’s defence team were so keen to get Sr Rajoy and Sr Montoro onto the witness stand in Edinburgh!

In this Humpty-Dumpty world, then, is there hope for “a great fall” to bring Spanish jurisprudence back down to earth? Could the refusal to extradite by Schleswig-Holstein provoke a critical re-appraisal which might prevent all the king’s judges and all the king’s men from simply putting a partial system back together again? Evidently not judging by the paranoid response from the Supreme Court in Madrid which, to avoid further embarrassment in Europe, subsequently withdrew similar warrants in Belgium, Switzerland and Scotland whilst perversely maintaining these charges at home. Where, one may ask, is the integrity in such legal caprice? The logic of the Euroorder — which explicitly requires compatibility of the offence — demands that if it is not Treason in Germany (or Scotland) it is not violent rebellion in Spain. But, then again, when did Don Quixote ever prefer rationality and self-analysis to fantasy and delusion?