Enrique Miguel Sánchez Motos
Civil Administrator of the State
The serious political crisis created by the Catalan pro-independence movement has agitated emotions and stances. Is it right to illegalise pro-independence parties? Probably other neighbouring European countries would do it without many legal doubts, but, is this the stance protected by the Spanish Constitution?
We have a modern Constitution and, therefore, very broad regarding rights and freedoms that start in article 14 with a priority recognition of the right to equality, “without being possible to discriminate based on opinion”. Then, the content of the opinion is forcefully strengthened when article 16 declares that “Freedom of worship, religion and ideology of individuals and communities is guaranteed without further limitation, in their expressions, than that needed for the maintenance of the public order protected by the law”.
In a more explicit and specific way, article 20 recognizes and protects the right to “express and spread thoughts, ideas and opinions through words, in writing or by any other means” to “academic freedom”, being pointed out that these rights cannot be restricted “through any type of previous censorships”. On the other hand, articles 21 and 22 recognize the right to freedom of reunion and association. All that leads to conclude, without a doubt, that the Constitution protects and recognizes the right for parties promoting the independence of part of the territory to exist.
Nevertheless, the right of association, from which the right to the creation of political parties is derived, has constitutional limits. Therefore, article 22 of the Constitution points out that “Those associations pursuing purposes or using means considered as crime are illegal”, which can take them to be dissolved or suspended, although only“by virtue of justified legal resolution”. The Law 54/1978, of Political Parties, preconstitutional, which was valid until 2002, established in its fifth article that “The dissolution of parties will only be declared: a) When they fall into assumptions categorised as illicit association in the Penal Code; b) When their organization or activities are against democratic principles”.
However, this last section, democratic principles, was not developed until the current Law of Parties of 2002 was drawn up, which, in its article nine, points out that a political party will be declared illegal when “its activity interferes with democratic principles, in particular when with that activity it intends to deteriorate or destroy the regime of freedoms or prevent the democratic system”. Nevertheless, it conditions the declaration of illegality on specific behaviours connected to the exoneration or support to terrorist attacks, the promotion of violence or the political support to terrorist organizations. Article 10 stipulates that the legal authority will be able to declare its illegality when, taking the text of the preconstitutional law literally, “it falls into assumptions categorised as illicit association in the Penal Code”.
The Penal Code in force, in its article 515, categorises as illegal associations, among others, “Those whose objective is to commit some crime or, after being constituted, promote their perpetration” and it points out that the judges or courts, in the assumptions established in article 515, “will agree on the dissolution of the illegal association” and will sentence the founders, directors and presidents to between two to four years of prison and special disqualification for employment or public position from six to twelve years. Therefore, the legal conclusion is clear. Given that actions for libel have been brought against leaders of different pro-independence parties for crimes of disobedience, perversion of justice, embezzlement, sedition and rebellion it is also worth asking the Justice to dissolve those parties having fallen into the crime of illegal association.
It would be an excellent decision that, facing the immediate future, all the democratic institutions and parties, and the Government in particular, were clear about asking the Justice for the illegalisation of all those parties committing crimes. Therefore, pro-independence parties, whose existence is recognized and protected by the constitution, must always act within the framework of legality if they want to continue to exist. It should be remembered that democracy in our Constitution is based on the respect for the rule of law. Those acting outside the law must be illegalised and, therefore, they will lack the support, facilities and guarantees offered by the Constitution to those wishing to develop their political action within the constitutional framework.
We want a better and democratic Spain and, in order to achieve that, the respect for the rule of law is unavoidable.
¡Long live Catalonia and Visca Espanya!
14/11/2017. © All rights reserved.