Joyce McMillan: EU complicit in Spain's Francoist extradition case of Ponsati

Spanish Guardia Civil officers drag a man outside a polling station in Sant Julia de Ramis on the day of Catalonia's disputed independence referendum. (Picture: AFP/Getty)

This has been an emotional week, for the survivors of the great generation who fought against white supremacism in the United States and in South Africa, and for their heirs and successors. Wednesday marked the 50th anniversary of the brutal assassination in Memphis of the great civil rights leader Martin Luther King Jr; and earlier in the week, in South Africa, thousands poured onto the streets to celebrate the life of Winnie Madikizela Mandela, who was married to Nelson Mandela throughout his long imprisonment, and became a major leader of the anti-apartheid movement in her own right.

Of the two, Martin Luther King is of course a less controversial figure today; Winnie Mandela is known to have been involved, in the 1980s, in brutal and even murderous activity against alleged informers within the anti-apartheid movement.

Yet in both of those iconic liberation movements of the 20th century, the key leadership figures who are most revered today made no secret of their willingness to break the law, when they felt the law was manifestly unjust.

During his 20-year campaigning life – always using strictly nonviolent methods – King was arrested 29 times; Nelson Mandela was sentenced to life imprisonment for his involvement in the African National Congress’s armed wing, and was still described as a “terrorist” by many conservative politicians well into the 1980s. Nor are King and Mandela alone among the most revered political leaders of the last century; this year, 100 years after British women first gained the vote, we celebrate the Women’s Suffrage movement, some of whose most celebrated members spent time in prison after damaging property and disrupting public order in support of their cause.

All of which forms an interesting backdrop, this week, to the evolving case of the former Catalan government minister and St Andrews University professor Clara Ponsati, who is resisting extradition to Spain under a European Arrest Warrant, following her involvement in the organisation of last year’s Catalan independence referendum. Her case is less dramatic, and perhaps more ambiguous, than those of Mandela and King; there are plenty of people, both in Spain and here in Britain, who believe that Catalan nationalist politicians are just a bunch of over-privileged troublemakers, seeking to sow division between Catalonia and the rest of Spain, and to avoid sharing their region’s wealth.

Video: Who is Clara Ponsati?

Whatever we think of the cause of Catalan independence, though, it’s hard to deny that the Scottish courts face a difficult decision in Ponsati’s case. As many commentators have pointed out, the European Arrest Warrant system was drawn up to help deal with international terrorists and drug-traffickers, not with the bookish civic leadership of an ordinary political party seeking a form of national independence within the European Union; and both Scotland and Germany now find themselves in the strange position of being expected to implement Spanish law which certainly exists, but which also fairly clearly conflicts with some of the basic principles on which the EU is supposed to be founded.

These include the UN Charter-based principle of the right of self-determination of peoples, which was heavily emphasised and used by the EU itself during the break-up of former states such as Yugoslavia and Czechoslovakia. It has also been argued by some that a fair trial cannot be guaranteed under a Spanish judicial system which is as vulnerable to the charge of lacking independence as the Polish one, currently the subject of EU disciplinary action; and that the disproportionate charge of “violent rebellion”, brought against peaceful politicians who organised a referendum, is a ridiculous hangover from the mindset of the Franco years – one that should have been removed from Spanish law at the time of its accession to the EU.

So far as the political situation in Catalonia is concerned, there is no doubt that sooner or later – in one year, or in 20 – a body which has influence with the Spanish government will have to compel it to come to the negotiating table; Spain cannot seriously hope to baton, bully and arrest its most prosperous and dynamic region into complete political and cultural quiescence, without inflicting long-term damage on the life and economy of the whole region.

Those political considerations, though, do nothing to help resolve the current dilemma faced by the Scottish judicial system; and for now, Nicola Sturgeon, as Scotland’s head of government, can do nothing but stand aside and let the courts do their work – particularly since arguments about judicial independence may play a key role in the case against Ponsati’s extradition.

What we should learn or re-learn from the Catalan crisis, though, is the old truth that bad law, at any level, eventually brings the whole principle of the rule of law into disrepute. Almost every evil or horrifying act committed by governments in the last century has been technically legal, at the time, in the country concerned; hence the advent of international law, to provide a higher court of appeal.

And what that means is that although Sturgeon, as Scotland’s nationalist leader, will suffer the most immediate political blowback if Ponsati is extradited, it is the European Union which stands to suffer most long-term damage, for the fundamental offence of setting up a European Arrest Warrant scheme without first checking that all the legal systems involved comply with the basic democratic rights the EU claims to uphold. At the moment, we are hearing a good deal, in the UK, about the key stabilising role that EU membership played in making possible the Good Friday agreement that has brought 20 years of relative peace to Northern Ireland.

If the EU fails to play the same role now, though, in helping to stabilise and re-civilise relations between Spain and a restless Catalonia, then it will in effect be confessing its own incipient decay into a mere self-serving alliance of established governments. And in that process, it will begin, like all bad governments, to damage all the judicial systems within its borders; by forcing them to support bad law, and failing to guarantee a space in which they can implement the principles of justice, freedom and proportionality that make legal systems sustainable, and progress possible.