Ignasi Bernat and David Whyte – Spain’s Postfascism on Trial

Yesterday the trials of Catalonian political prisoners in Spain began.

Human Rights Watch has questioned the legitimacy of the trials, asking why “no police officer had been convicted for excessive use of violence during the crack-down on the October 1, 2017, independence referendum.” Amnesty International has officially asked to be an observer at the trials, but been refused by the Spanish court.

Ignasi Bernat is an academic sociologist and social movement activist based in Barcelona

David Whyte, is  Professor of Socio-legal Studies at theUniversity of Liverpool

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The 9 political prisoners and 3 others are on trial for the archaic crimes of ‘rebellion’ and ‘sedition’. The former offence was brought back into use by Franco in the 1940s to prosecute and execute opponents using his military courts. Just pause a moment to reflect on this. We have a leading European state putting 12 people on trial for peaceful political activities, using legal categories that most democracies left behind in the 18th century and were revived by a fascist dictator. All 12 of them were either elected or legitimately recognised political leaders representing the majority in Catalonia. And 9 of them have already been in jail for 17 months or so. They are on trial for organising a plebiscite that was also supported by the majority of the Catalan citizens. They are on trial for organising a vote against the wishes of the sovereign power that is widely regarded as hostile. You have to pinch yourself. This is in Europe. In the 21st century.  Benet Salellas, lawyer of Jordi Cuixart, told the court as it opened yesterday, the consequences for Spanish democracy will be devastating.  Amongst the evidence presented by the prosecution to show his client is guilty, is that he shouted no pasaran the famous republican slogan from the Spanish civil war.  In his opening remarks, Salellas proclaimed, “No Pasaran will continue to be the internationally recognised anti-fascist slogan.” He ended by asserting that this is a trial against the freedom to exercise the most basic civil and political rights and therefore that it should not even come before a court of law.

There is a troubling lack of understanding about how we should read the significance of all of this. Some left commentators have been quick to label the repression in Catalonia as ‘return of Franco.’ Others have dismissed the police violence, the political prisoners and the shutting down of a democratically elected government as a reasonable defense by a state in crisis.

To outside observers, the mode of arrival of 10,000 Spanish national police and Guardia Civil in September 2017, and the subsequent scenes of extreme police violence on the 1st October did look like the response of a dictatorship. Yet the scale and intensity of state violence clearly cannot be compared to the Franco dictatorship, a regime that ‘disappeared’ 115,000 people. 

We can’t call Spain fascist. It has a liberal democratic political system, and a liberal market economy. But there are key features of the Spanish System of government and administration, and indeed, the structure Spanish industry that never fully completed the transition to democracy. This is why we call Spain a postfascist state. Of the countries that were ruled by fascist forces before and after the second world war (also including Germany, Italy, Greece and Portugal) it is only Spain that can be described as postfascist. This is because of the course it took in the transition from dictatorship to democracy. Italy and Germany were able to expel fascism from institutions and practice of government as a direct result of military defeat. The brand of fascism that endured in Greece and Portugal in the post-war era are more comparable to Spain. Yet in the end, for very different reasons, those two dictatorships were exposed to processes of reparation, memory and indeed criminal trials that helped expel fascism from the system of government. This did not happen in Spain. Not quite.

In Spain, the personnel and institutional structure of power remained intact; the remnants of Franco’s fascism were never completely eradicated from the state’s power structures. That is to say, the form of historical memory preserved by the state, the constitutional structure, the administration of politics, law, the police and the military have inhibited a full transition from the previous regime, even though Francoism officially left the government building half a century ago.

The ongoing public funding of the Franco Foundation, the preservation of the Duchy of Franco (a hereditary title gifted to the Franco family by King Juan Carlos), the statues of the Dictator in public places and the streets named after him, are all examples of the cultural endurance of the emblems of fascism at the heart of the Spanish aristocracy and the Spanish state. Franco restored the yellow and red nationalist flag, and a version of this remains in place, rather than the republican tricolour. Spain’s national day is the 12th October, the anniversary of the arrival of Christopher Columbus in the Americas. This is the “day of the race” that Franco used explicitly to celebrate the conquistador traditions of Spain. The national holiday on the 12th October remains associated with a colonial, anti-republican nationalism.

Juan Carlos’ generosity to Franco is not difficult to explain. As part of the 1978 constitutional settlement, the position of the monarchy was reestablished and Juan Carlos was crowned the first Spanish monarch for 4 decades. In exchange for this appointment, Juan Carlos swore allegiance to Franco’s ‘Principles of the National Movement.’  When Juan Carlos’ son Felipe made an unprecedented TV address on the 3rd October 2017, the day of a general strike in Catalonia, condemnation of Catalonia and its institutions for their disloyalty opened the political space for the constitutional suspension of the Catalonia government.  

And this explains the dramatic punitive turn in Spain against insubordination show to the monarchy in Spain. The rapper Valtonyc was forced to flee into exile to Brussels to avoid a possible three years of imprisonment for his anti-royalist lyrics. Another hip hop singer, Pablo Hasel, is currently facing trial for ‘hate speech’ against the monarchy. The spectacle of police confiscating yellow banners, ribbons and balloons from football fans and the banning of the use of the colour yellow by human rights activists is perhaps one of the most extreme and preposterous manifestations of the state’s complete pulverisation of any discussion of the political prisoners.

And yet, the ‘banning’ of the colour yellow in public places mirrors precisely the logic of the 1978 post-Franco settlement. The settlement ensured that the new Spanish state would not officially recognise Franco’s treatment of political prisoners, or even his mass graves. The 1977 ‘Amnesty Law’ gave an official amnesty to Franco’s political prisoners at the same time as granting impunity for crimes related to the regime. Civil servants who played a key role in the Franco dictatorship, judges and police officers – including those who had tortured countless civilians – quietly remained in place under the terms of the post-Franco amnesty. This continuity of personnel, coupled to the institutional amnesia about Franco’s mass graves – Spain had the second largest number of ‘disappeared’ in the 20th century after Cambodia – ensured that the institutional culture of fascism went unchallenged inside the state.

Of particular significance to the constitutional continuity of Franco has been the replication of the way that political control is exerted over the national courts. The Audiencia Nacional was the court responsible for initiating the prosecution of the 9 Catalan political prisoners before their cases were passed to the Supreme Court for trial. This court was created in the image of Franco’s notorious Public Order Tribunal. The judges are political appointees; the court explicitly deals with issues of conflict deemed to be ‘political’. The Spanish Constitutional Court similarly open to political appointment and is not regulated by the same law that regulates judges and magistrates. Its members do not have to be accredited judges and are chosen directly by the organs of government (the Spanish parliament, central executive and the administrative body for the courts). Between 2012-2017, it was presided over by Francisco Pérez de los Cobos, a member of the conservative Partido Popular (PP) and the brother of Diego Pérez de los Cobos, who was in charge of coordinating the police operations on the 1st of October and had been a senior official in the PP government. Andrés Ollero, who previously spent 17 years as a MP in the Congress of Deputies representing the PP, is currently the magistrate of the court.

The Spanish Constitutional Court has consistently protected conservative and ruling class interests and it has been deployed routinely against the various autonomous parliaments when they dare to make ‘autonomous’ decisions. In recent years, this role has been most obvious in the Catalan case. Since 2006 more than 40 laws passed by the Catalonian Parliament have been blocked by the Constitutional Court using the argument that the Parliament has no competency to legislate on such issues. Most of the blocked laws were concerned with securing social rights, and protecting people against impact of austerity. It is in those judgements that we find the conditions of the crisis in Catalonia.

The ease with which Spain convicts political prisoners and forces politicians into exile is a mark of the endurance of the culture of the dictatorship in which the judiciary were politically motivated and politically compromised. We are not claiming that the practice of imprisoning political opponents and forcing people into exile remotely resembles the scale of violence experienced in the Franco period, but it is crystal clear that this practice reflects the modus operandi of the dictatorship very precisely. This is certainly not fascism either in its official guise, or in practice. But it is postfascism. And it is precisely because it is the postfascist structure of power that the self-determination movement in Catalonia is trying to break which tells us that independence movement in Catalonia is not going to be broken easily.

Ignasi Bernat and David Whyte explore the potential and crisis of Catalonia in Building a New Catalonia: Self-Determination and Emancipation, published by Bella Caledonia and Pol·len


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